PICKET SIGNS VERSUS POCKET BOOKS: USING U.S. SECURITIES ... · disclosure of lobbying...

85

PICKET SIGNS VERSUS POCKET BOOKS: USING U.S.

SECURITIES LAW TO COMPEL CORPORATE

LOBBYING DISCLOSURE

Mitchel Dalton Downing

I. INTRODUCTION .................................................................................................... 86

II. BACKGROUND ..................................................................................................... 88

A. What is “Lobbying”? .......................................................................... 88

B. The History of Corporate Lobbying .................................................... 89

C. The Expansion of Modern Corporate Lobbying ................................. 93

III. INVESTOR ENGAGEMENT FOR DISCLOSURE: INTERESTS, MOTIVATIONS, AND

ILLUSTRATIONS ........................................................................................... 95

A. Shareholder Resolutions ..................................................................... 96

1. Increasing Shareholder Resolutions and Their Demands ............. 96

2. The Success of Shareholder Resolutions ...................................... 96

3. The Shortcomings of Successful Shareholder Resolutions ........... 98

B. Investor Motivations for Engagement ................................................. 99

C. Illustrations of Investors’ Concerns Realized ................................... 101

1. Undermining Investor Protection: Chesapeake Energy

Corporation ................................................................................. 101

2. Implicating Reputational Risks: Big Telecomm and Network

Neutrality .................................................................................... 103

D. Other Forms of Investor Engagement: Litigation, Legislation, and SEC

Petitions ............................................................................................ 106

IV. MATERIALITY APPLIED: THE CASE FOR REQUIRED DISCLOSURE .................... 109

A. The Materiality Standard .................................................................. 109

1. The Federal Courts on Materiality .............................................. 110

2. SEC Guidance on Materiality ..................................................... 111

3. Conclusion .................................................................................. 113

B. Demonstrating Materiality: Applying the Materiality Standard ....... 113

1. Reasonable Investors are Interested in Corporate Lobbying

Information ................................................................................. 113

2. Reasonable Investors Consider Lobbying Information Significant

in Their Deliberations. ................................................................ 115

V. CONCLUSION .................................................................................................... 119

86 TULSA LAW REVIEW [Vol. 53:85]

I. INTRODUCTION

Returning to their eighteenth century roots, American consumers are borrowing a

strategy of political mobilization and resistance first employed by American patriots to

oppose the British Empire—consumer protests.1 Years before signing the Declaration of

Independence, American colonists boycotted British goods, and the merchants who sold

them, to protest British policies.2 For provincial consumers boycotting British imports,

“everyday goods became a measure of patriotism.”3 Their private choices in the market-

place symbolized a steadfast refusal to detach their consumption of British goods from its

political consequences.4

Now, more than two centuries later, modern American consumers are emulating

their Revolution-era ancestors. Once limited to bumper stickers and yard signs, the expres-

sion of political preference has returned to the marketplace—but corporations, not the gov-

ernment, bear the brunt of this modern political resistance. Fueled by socially-conscious

“Millennials” and motivated by hot button social issues, modern consumers are reforming

their private acts of consumption into overt political acts. Business executives call modern

consumer culture the “new battleground . . . beyond the nation’s capital”—and corpora-

tions are caught in the crosshairs.5

Modern consumers closely scrutinize corporations’ political ideologies and, if neg-

atively perceived, transform goods and services into vehicles for protesting the underlying

policies. For example, GoDaddy, the world’s largest web-hosting service, became the tar-

get of a boycott after privately expressing support for a controversial bill to the House

Judiciary Committee.6 GoDaddy lost more than 37,000 customers in only two days.7

Moreover, consider Uber, the world’s largest ridesharing company, whose Chief Execu-

tive Officer served on President Donald J. Trump’s economic advisory council.8 After

President Trump issued a controversial executive order, consumers perceived Uber’s am-

biguous response as endorsing the President’s order and organized a consumer boycott,

which went viral and resulted in more than 200,000 Uber customers permanently deleting

their accounts.9

Just as modern consumers are transforming their consumption into political power,

shareholders are demanding corporations disclose their lobbying activities, which are

1. See T.H. BREEN, THE MARKETPLACE OF REVOLUTION: HOW CONSUMER POLITICS SHAPED AMERICAN

INDEPENDENCE (2004), for a discussion of how American colonists politicized British goods, created a shared public sacrifice, and contributed to the success of the American Revolution through political solidarity in the marketplace.

2. Id. at 257–58.

3. Id. at XVI.

4. Id.

5. Richard Levick, The ‘Trump Effect’: Consumer Boycotts Could Become Pervasive on Both Sides, FORBES (Dec. 5, 2016, 1:32 PM), http://www.forbes.com/sites/richardlevick/2016/12/05/the-trump-effect-consumer-boycotts-could-become-pervasive-on-both-sides/#52685f131e04 [hereinafter The Trump Effect].

6. CRUNCHBASE, GODADDY OVERVIEW, https://www.crunchbase.com/organization/godaddy#/entity (last visited Feb. 23, 2017); Tom Cheredar, Go Daddy Loses Over 37,000 Domains Due to SOPA Stance, VENTURE

BEAT (Dec. 24, 2011, 5:36 PM), http://venturebeat.com/2011/12/24/godaddy-domain-loss.

7. Cheredar, supra note 6.

8. Mike Isaac, Uber C.E.O. to Leave Trump Advisory Council After Criticism, N.Y. TIMES (Feb. 2, 2017), https://www.nytimes.com/2017/02/02/technology/uber-ceo-travis-kalanick-trump-advisory-council.html.

9. Id.

2017 PICKET SIGNS VERSUS POCKET BOOKS 87

aimed at influencing government action and policy.10 For some shareholders, the motive

prompting their demand for disclosure is ideological: they want to avoid investing in a

company whose political spending advances causes or candidates they do not support.11

For others, the motive is financial: disclosing lobbying activities “safeguards corporate

reputation and protects shareholder value.”12

Motives aside, the trend for increased transparency in corporate lobbying is undeni-

able: “disclosure of political spending has in recent years been a more frequent subject of

shareholder proposals at U.S. public companies than any other corporate governance is-

sue.”13 Such shareholder proposals seek to amend corporate policies to mandate annual

disclosure of lobbying information.14 Consistent with this position, this Note argues that

corporate lobbying activities are “material investor information,” and thus, federal law

requires disclosure of such information.

Part I of this Note defines “lobbying,” recounts the history of lobbying in the corpo-

rate context, and describes several reasons for its increased prevalence in the last forty-

five years. Part II discusses the recent increase in investor engagement—by way of share-

holder proposals, petitions to the U.S. Securities and Exchange Commission (the “SEC”),

and lawsuits—seeking corporate lobbying disclosures, as well as three key concerns pre-

sented by opaque corporate spending. Part II also provides two illustrations of investors’

concerns realized: the Chesapeake Corporation example demonstrates how corporations

may use lobbying to undermine investor protection, and the network neutrality example

reveals the potential negative effects that lobbying can have on corporate reputation and

share value. Finally, Part II concludes that, regardless of whether lobbying detracts or en-

hances company performance, investors are demanding increased transparency at unprec-

edented rates because lobbying implicates reputational and commercial risks.

Part III of this Note begins with a review of Supreme Court jurisprudence and SEC

guidance establishing the “materiality standard,” which provides the foundation for this

Note’s argument: corporate lobbying activities create material information that reasonable

investors consider significant in their deliberations. Focusing on the impacts of lobbying

on corporate reputation and share value, Part III establishes the materiality of corporate

lobbying information by demonstrating that a reasonable investor would consider such

information important. Ultimately, Part III states that corporate lobbying poses both com-

mercial and reputational risks to a company’s financial performance and share value, and

10. John Keenan, Corporate Lobbying Disclosure is Material Investor Information, PROXY PREVIEW 2016, at 29, https://higherlogicdownload.s3.amazonaws.com/GOVERNANCEPROFESSIONALS/a8892c7c-6297-4149-b9fc-378577d0b150/UploadedImages/Society%20Alert%20Docs/Proxy-Preview-2016.pdf.

11. See, e.g., Letter from Adam Skaggs, Senior Counsel, Brennan Ctr. for Justice to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n at 5, 7 (Dec. 21, 2011), available at https://www.brennancenter.org/sites/de-fault/files/legacy/Democracy/CFR/Brennan%20Center%20Comments%20-%20File%20No%20%204-637.pdf (providing, as an example, shareholder outrage following the revelation of Target’s donations to a political com-mittee that opposed gay marriage).

12. Keenan, supra note 10.

13. Letter from Lucian A. Bebchuk, Professor, Harvard Law Sch. & Robert J. Jackson, Jr., Professor, Co-lumbia Law Sch. to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n 2 (Apr. 30, 2013), available at https://www.sec.gov/comments/4-637/4637-1701.pdf.

14. AS YOU SOW, PROXY PREVIEW 2016, at 29–30 (2016), https://higherlogicdownload.s3.amazo-naws.com/GOVERNANCEPROFESSIONALS/a8892c7c-6297-4149-b9fc-378577d0b150/UploadedImages/Society%20Alert%20Docs/Proxy-Preview-2016.pdf [hereinafter PROXY

PREVIEW 2016].


therefore, constitutes material investor information that corporations must disclose to in-

vestors under federal securities law.

II. BACKGROUND

A. What is “Lobbying”?

At its most broad, the consensus definition of lobbying is any attempt to influence

actions of the government.15 While that definition seems simple enough, dictionary and

statutory definitions of “lobbying” vary considerably in scope and substance.16 Black’s

Law Dictionary defines “lobbying” as “talk[ing] with or curry[ing] favor with a legislator,

usually repeatedly or frequently, in an attempt to influence the legislator’s vote.”17 While

Black’s confirms that attempting to influence policy is the common definitional focus for

“lobbying,” it still leaves many questions unanswered, such as by what methods a lobbyist

may influence the passage or defeat of a bill.18

Unfortunately, the statutory definitions of “lobbying” that apply to corporations, all

of which differ in certain respects, raise similar questions and provide few answers.19 For

example, the Internal Revenue Code (the “Code”) defines lobbying solely by the type of

government action that charitable and private foundations seek to influence; in effect, the

same definition applies to corporate lobbying.20 Under the Code, the key is whether a sub-

stantial part of an organization’s activities “is carrying on propaganda, or otherwise at-

tempting, to influence legislation.”21 While consistent with the consensus definition of

lobbying, the Code’s definition limits lobbying only to legislative branch officials, implic-

itly excluding executive branch officials, administrative agencies, and the judiciary.22

In contrast, the Lobbying Disclosure Act of 1995 (the “LDA”) focuses primarily on

the government actor sought to be influenced and provides two categories of actors:

“[c]overed executive branch official[s]” and “[c]overed legislative branch official[s].”23

The LDA defines “lobbying activities” more broadly, including “preparation and planning

activities, research and other background work that is intended . . . for use in contacts, and

coordination with the lobbying activities of others.”24 Although the LDA mandates disclo-

sure of lobbying activities, it confines the disclosure requirements only to lobbyists, which

it defines as “individuals or organizations that are hired by a client to engage in lobbying,

15. Lloyd Hitoshi Mayer, What Is This “Lobbying” That We Are So Worried About?, 26 YALE L. & POL’Y

REV. 485, 486 n.2 (2007).

16. Id. at 508.

17. Lobby, BLACK’S LAW DICTIONARY (10th ed. 2014).

18. Brian W. Schoeneman, Comment, The Scarlet L: Have Recent Developments in Lobbying Regulation Gone Too Far?, 60 CATH. U. L. REV. 505, 508 (2011).

19. Id.; Mayer, supra note 15, at 508 (“The tax laws provide three definitions of lobbying, while the [LDA] provides another definition,” and “[e]ven more confusingly, the [LDA] permits some organizations to use tax law definitions instead of the [LDA] definition.”).

20. See I.R.C. §§ 501(c)(3), 4945(d)(1), (e)(1)-(2) (2000); Mayer, supra note 15, at 511 (noting that “the determinative issue is whether the target of the attempted influence is legislation.”).

21. See I.R.C. § 501(c)(3) (2000) (emphasis added).

22. Mayer, supra note 15, at 509–10.

23. 2 U.S.C.A. § 1602(3)-(4) (West 2007).

24. § 1602(7).


or individuals or organizations that lobby on their own behalf.”25 Thus, because corpora-

tions are “clients” instead of “lobbyists,” the LDA does not require corporations disclose

lobbying information.26

Based on the competing definitions of lobbying, it is clear that legislators have not

devised an all-purpose definition of lobbying, and this has led to puzzling and, at times,

ineffectual laws.27 Nevertheless, for purposes of this Note, we adopt the consensus defini-

tion among interest-group scholars: all activities seeking to influence the policy process.28

Under this definition, lobbying includes, “grassroots campaigns, use of the mass media,”

and “contacts in the bureaucracy, the office of the president, . . . the courts, . . . [and] the

legislature.”29 Moreover, for purposes of this Note, we focus our analysis on lobbying at

the federal level, though it should be noted that corporations spend billions of dollars per

year to influence state lawmakers as well.30

B. The History of Corporate Lobbying

The First Amendment right to “petition the Government for a redress of grievances”

provides constitutional protection for the practice of lobbying.31 The Supreme Court has

concluded that the right to petition for a redress of grievances is “among the most precious

of the liberties safeguarded by the Bill of Rights.”32 Nevertheless, it took nearly 200 years,

a shifting global economic landscape, and a tide of labor reform legislation before Amer-

ican businesses seriously organized their lobbying efforts.33

Only a few corporations lobbied Congress in the 1950s and 1960s, typically through

trade associations.34 To a large degree, those efforts were “poorly financed, ill-managed,

[and] out of contact with Congress.”35 Following their 1963 landmark study of corporate

lobbying, three prominent political scientists wrote, “When we look at a typical lobby, we

find that its opportunities for maneuver are sharply limited, its staff mediocre, and its major

25. Mayer, supra note 15, at 501–02.

26. William V. Luneburg & Thomas M. Susman, Lobbying Disclosure: A Recipe for Reform, 33 J. LEGIS. 32, 40 (2006) (“Disclosure under the LDA is required only if an individual is hired for compensation to influence federal policy or its implementation.”).

27. FRANK R. BAUMGARTNER & BETH L. LEECH, BASIC INTERESTS: THE IMPORTANCE OF GROUPS IN

POLITICS AND POLITICAL SCIENCE 29 (1998).

28. Id. at 33–34 (stating that the common thread for the scholarly definition of lobbying is seeking to influ-ence the policy process).

29. Id. at 34.

30. Reid Wilson, Amid Gridlock in D.C., Influence Industry Expands Rapidly in the States, WASH. POST (May 11, 2015), https://www.washingtonpost.com/blogs/govbeat/wp/2015/05/11/amid-gridlock-in-d-c-influ-ence-industry-expands-rapidly-in-the-states/?utm_term=.3304fe66fda3 (noting that in the twenty-eight states where lobbying data was available, lobbyists reported spending at least $2.2 billion during the 2013 to 2014 biennium).

31. U.S. CONST. amend. I. See Andrew P. Thomas, Easing the Pressure on Pressure Groups: Toward a Constitutional Right to Lobby, 16 HARV. J.L. & PUB. POL’Y 149, 158–72 (1993), for a study of Supreme Court cases regarding lobbying as a First Amendment-protected activity.

32. United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967).

33. BENJAMIN C. WATERHOUSE, LOBBYING AMERICA: THE POLITICS OF BUSINESS FROM NIXON TO NAFTA 2–3 (2014).

34. Id. at 19.

35. RAYMOND A. BAUER, ITHIEL DE SOLA POOL & LEWIS ANTHONY DEXTER, AMERICAN BUSINESS AND

PUBLIC POLICY: THE POLITICS OF FOREIGN TRADE 324 (1972).


problem not the influencing of Congressional votes but the finding of clients and contrib-

utors to enable it to survive at all.”36 However, the political, economic, and cultural

changes of the 1960s and 1970s shifted the political landscape in Washington, D.C. and

the mentality of business executives, thereby laying the foundation for the historically un-

precedented degree of political influence American corporations wield today.37

Politically, the burgeoning regulatory state disconcerted business leaders. Between

1965 and 1977, Congress enacted forty-four major regulatory laws, which were largely

focused on worker’s rights and safety.38 In 1970, Congress formed subject-oriented federal

regulatory agencies, like the Environmental Protection Agency (the “EPA”), and adopted

laws like the Clean Air Act and the Occupational Safety and Health Act.39 Within a few

years, public interest activists occupied high-level agency positions—executives from the

Natural Resources Defense Council headed both the EPA and the Council on Environ-

mental Quality.40 Under activist leadership, the focus of regulatory politics quickly shifted

from “protecting a range of interests from business abuses, especially other businesses, to

protecting people from business.”41 A brief look at the federal budget illustrates the explo-

sion of social regulations: between 1970 and 1975, the budget for federal regulatory agen-

cies increased from $1.5 to $4.3 billion.42

The laws of the 1960s and 1970s imposed billions of dollars in compliance costs on

businesses, and many corporate leaders also took umbrage with the new regulations, as

though the laws implicated their good faith to treat workers and the law with respect.43 In

August 1971, just two months prior to his nomination to the Supreme Court, Lewis F.

Powell wrote a memorandum to a leader of the U.S. Chamber of Commerce, portentously

titled “Attack on American Free Enterprise System.”44 Powell wrote that “[n]o thoughtful

person can question that the American economic system is under broad attack” and “in

terms of political influence . . . the American business executive is truly the ‘forgotten

man.’”45

Perhaps politicians had forgotten the American business executive, but he occupied

the minds of many—and mostly in a negative regard.46 Polling figures from the same era

reflected the public’s pessimistic view of American industry. In the early 1970s, only

twenty-eight percent of Americans expressed “a great deal of confidence” in business ex-

ecutives, down from more than one-half of Americans in the mid-1960s.47 By 1975, Gallup

36. Id.

37. WATERHOUSE, supra note 33, at 2–3.

38. LEE DRUTMAN, THE BUSINESS OF AMERICA IS LOBBYING: HOW CORPORATIONS BECAME POLITICIZED

AND POLITICS BECAME MORE CORPORATE 55 (2015). See MICHAEL W. MCCANN, TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM 29–35 (1986), for a discussion of the origins and successes of the public interest liberalism movement during the 1960s and 1970s.

39. WATERHOUSE, supra note 33, at 32–33.

40. MCCANN, supra note 38, at 63.

41. WATERHOUSE, supra note 33, at 32.

42. DRUTMAN, supra note 38, at 55.

43. Id.; WATERHOUSE, supra note 33, at 33.

44. Memorandum from Lewis F. Powell, Jr. to Eugene B. Sydnor, Educ. Comm. Chairman, U.S. Chamber of Commerce (Aug. 23, 1971), available at http://law2.wlu.edu/deptimages/Powell%20Archives/PowellMemo-randumTypescript.pdf.

45. Id. at 1, 25.

46. See WATERHOUSE, supra note 33, at 37 (describing the “cultural assault” on business in the form of social regulations).

47. See KIM PHILLIPS-FEIN & JULIAN E. ZELIZER, WHAT’S GOOD FOR BUSINESS: BUSINESS AND AMERICAN


Polls indicated that Americans had less confidence in big business than in any other major

national institution, including Congress, organized labor, the Armed Forces, and organized

religion.48

Suffering poor publicity in the court of public opinion, the economic landscape pro-

vided little reprieve, as the American economy “got progressively sicker by almost every

indicator of economic health.”49 The after-tax profit rate for corporations hit an all-time

high in 1965—a rate corporations would never see again.50 In 1971, the U.S. experienced

its first manufacturing trade deficit in more than a century, and the Bretton Woods system

of international monetary policy collapsed.51 The next few years witnessed a recession,

which saw unemployment rates reach 8.9%, severe supply shocks, and high inflation.52

Most compellingly, after-tax corporate profit rates, which averaged 13.7% in 1965, rapidly

declined to about eight percent in the early 1970s.53

It became apparent to business executives that the free enterprise system—a system

they believed to be “the very fabric of free society”—was under attack, and that they must

end “the impotency of business” by taking direct political action to influence the govern-

ment.54 In response, America’s corporate giants founded the Business Roundtable in

1972.55 Three existing organizations merged to form the Business Roundtable,56 though it

would quickly become a massive organization led by the chief executive officers (“CEOs”)

of America’s largest corporations.57

The first merging organization, the March Group, was comprised solely of CEOs of

large corporations, and began meeting informally at the Links Club in New York City in

the 1960s to discuss public policy issues.58 The other two merging organizations, the Con-

struction Users Anti-Inflation Roundtable and the Labor Law Study Committee, handled

POLITICS SINCE WORLD WAR II 237–38 (2012) (citing “Confidence in Leaders of Ten Institutions, 1966–1984,” Box 132, Robert M. Teeter Papers, Gerald R. Ford Library, Ann Arbor, Mich.).


49. JEROME L. HIMMELSTEIN, TO THE RIGHT: THE TRANSFORMATION OF AMERICAN CONSERVATISM 132–34 (1990).

50. U.S. BUREAU OF ECON. ANALYSIS, SHARES OF GROSS DOMESTIC INCOME: CORPORATE PROFITS: PROFITS AFTER TAX WITH INVENTORY VALUATION AND CAPITAL CONSUMPTION ADJUSTMENTS (2016), https://fred.stlouisfed.org/series/W273RE1A156NBEA (last visited Mar. 3, 2017). Corporate profit rates were approximately 7.2% in 1965, but rates fell to 4.1% by 1970. Profit rates reached seven percent in 2012, but never again reached the 1965 rate.

51. Yusen Liu & Stacy Vollmers, A Tale of Two Deficits: US Trade Deficit and US Trade Deficit with China, 1 INNOVATIVE MARKETING 121, 123 (2005); M.J. Stephey, A Brief History of Bretton Woods System, TIME (Oct. 21, 2008), http://content.time.com/time/business/article/0,8599,1852254,00.html.

52. Stephey, supra note 51; Kevin L. Kliesen, Recession or Depression?, ECON. SYNOPSES (Fed. Reserve Bank of St. Louis, St. Louis, Mo.), Mar. 23, 2009, at 2, available at https://files.stlouisfed.org/files/htdocs/pub-lications/es/09/ES0915.pdf.

53. HIMMELSTEIN, supra note 49, at 132.

54. WATERHOUSE, supra note 33, at 14; Memorandum from Lewis F. Powell, Jr., supra note 44, at 25.

55. History of Bus. Roundtable, http://businessroundtable.org/about/history (last visited Feb. 24, 2017). The Roundtable vigorously opposes any measure that would require public companies to disclose their political spending, stating that “[r]ecent efforts to . . . use the federal securities laws to address general societal concerns are harmful to investors and must be stopped.” See BUS. ROUNDTABLE, THE MATERIALITY STANDARD FOR

PUBLIC DISCLOSURE: MAINTAIN WHAT WORKS 12 (2015), available at http://businessroundtable.org/sites/de-fault/files/reports/Materiality%20White%20Paper%20FINAL%2009-29-15.pdf.

56. History of Bus. Roundtable, http://businessroundtable.org/about/history (last visited Feb. 24, 2017).

57. About Bus. Roundtable, http://businessroundtable.org/about (last visited Feb. 24, 2017).

58. See WATERHOUSE, supra note 33, at 76–77.


labor relations and inflations issues in the construction industry.59 With a number of For-

tune 100 CEOs at its reins, the Roundtable quickly became a streamlined, efficient organ-

ization.60 It “maintained a very small administrative staff, did not register as a lobbyist in

its own name, and did not actively coordinate fund-raising for political campaigns.”61 In-

stead, the Roundtable formed a number of issue-specific task forces, each chaired by a

CEO who utilized his own company’s resources to influence legislative actions.62

In 1972, only a few short months after its formation, the Roundtable organized its

first major lobbying endeavor, which opposed Congress’s reauthorization of the Economic

Stabilization Act of 1970 (the “ESA”).63 The ESA authorized President Richard Nixon to

“stabilize prices, rents, wages, and salaries.”64 Even though business executives were hos-

tile towards price controls, they initially promised the “wholehearted cooperation of the

industrial community to supporting President Nixon’s efforts to control inflation.”65 Yet,

while publicly offering support for the ESA, Roundtable leaders met privately with the

chairmen of the Federal Reserve and the Council of Economic Advisors to lobby for an

immediate end to the ESA.66 The strategy proved fruitful: Roundtable members reaped

much-needed positive publicity as President Nixon openly defended the importance of

corporate profits, even as Roundtable leaders privately advocated for repeal.67

In 1973 the tide turned as the Roundtable began publicly opposing the ESA.68

Roundtable members, relying upon their personal experiences running America’s corpo-

rate giants, testified before Congress that the price controls hurt businesses and stifled

economic growth.69 Partnering with third-party trade associations like the U.S. Chamber

of Commerce, Roundtable members shared evidence of widespread public opposition to

the Act, including “explicit examples from legislators’ own constituents” to lobby against

reauthorization.70 The Roundtable celebrated its first major success in 1974 when Con-

gress terminated the ESA.71

Over the next forty years, the Roundtable would achieve many more successes, rang-

ing from its opposition of labor law reform and antitrust legislation to its support of cor-

porate tax cuts.72 Its ideological focus shifted from “How can we keep the government out

59. Id. at 78.

60. Id. at 95. See also SAR A. LEVITAN & MARTHA R. COOPER, BUSINESS LOBBIES: THE PUBLIC GOOD AND

THE BOTTOM LINE 34 (1984) (noting that CEOs established the Roundtable, in part, because other organizations were poorly managed, resulting in “rather slow decisionmaking and difficulties in focusing business lobbying efforts.”).


62. Id.

63. Id. at 118, 122.

64. John J. Rigby, The Administration of Economic Controls: The Economic Stabilization Act of 1970, 29 CASE W. RES. L. REV. 458, 458 (1979).


66. Id. at 118–19. See also LEVITAN & COOPER, supra note 60, at 38. This meeting exemplifies what the authors call “the decisive advantage of the Roundtable,” which is “the direct access to high level policymakers it enjoys by virtue of its members’ positions as the most powerful business leaders in the country.” Id.


68. Id. at 120.

69. Id. at 121–22.

70. Id.

71. Rigby, supra note 64, at 459 n.2.

72. HIMMELSTEIN, supra note 49, at 140.


of our business?” to “How can we make the government our partners?”73 Working towards

such a partnership, the Roundtable has become one of the most powerful lobbying organ-

izations in the world.74 It describes itself as an “association of chief executive officers of

leading companies working to promote a thriving U.S. economy . . . through sound public

policy.”75 The face of the Roundtable’s membership has not changed, but its membership

has expanded; today, the CEOs of corporate giants, such as Wal-Mart Stores, ExxonMobil,

General Electric, MasterCard, American Express, and AT&T, compose the executive

committee.76 According to the Roundtable’s website:

Business Roundtable CEO members lead companies with more than $6 trillion in

annual reserves and nearly 15 million employees. The combined market capitaliza-

tion of Business Roundtable member companies is the equivalent of nearly one-

quarter of total U.S. stock market capitalization, and Business Roundtable members

invest $103 billion annually in research and development—equal to 30 percent of

U.S. private [research and development] spending. Our companies pay $226 billion

in dividends to shareholders and generate $412 billion in revenues for small and

medium-sized businesses annually.77

Undoubtedly, the Roundtable is extremely influential in American politics; in fact,

since 1998, it has spent more than $233 million on lobbying alone.78 The U.S. Chamber of

Commerce, with whom the Roundtable regularly collaborates, has spent more than $1.3

billion on lobbying since 1998.79 Still, the budgets of the Roundtable and the Chamber

pale in comparison to the billions of dollars spent each year by corporations lobbying on

their own behalf.80 Likewise, while the Roundtable employs a considerable number of

lobbyists—seventy-seven—that number loses significance compared to the thousands of

lobbyists employed by corporations and corporate lobbying firms.81 Ultimately, the suc-

cess of the Roundtable foreshadowed the unprecedented degree of political influence

American corporations yield today.

C. The Expansion of Modern Corporate Lobbying

In 2015, corporations spent about $2.6 billion per year on reported lobbying expend-

itures—$600 million more than taxpayers spent to fund both the House of Representatives

73. Lee Drutman, How Corporate Lobbyists Conquered American Democracy, ATLANTIC (Apr. 20, 2015), https://www.theatlantic.com/business/archive/2015/04/how-corporate-lobbyists-conquered-american-democ-racy/390822.

74. See, e.g., WATERHOUSE, supra note 33, at 77 (describing the Roundtable as a “political powerhouse that . . . [made] an indelible imprint on the history of business and politics in the United States.”).

75. About Bus. Roundtable, http://businessroundtable.org/about (last visited Feb. 24, 2017).

76. Bus. Roundtable’s Exec. Comm., http://businessroundtable.org/about/executive-committee (last visited Feb. 24, 2017).

77. Press Release, Bus. Roundtable, Business Roundtable: Trump Economics Team is Right to Focus on

Growth, Jobs, Tax Reform (Nov. 30, 2016), available at http://businessroundtable.org/sites/default/files/news-releases/BRT%20Commerce-Treasury%20Release%2011-30-16%20FINAL.pdf.

78. TOP LOBBYING SPENDERS, CTR. FOR RESPONSIVE POLITICS, https://www.opense-crets.org/lobby/top.php?indexType=s (last visited Feb. 24, 2017).

79. Id.

80. Id. For example, during the same period, General Electric spent over $345 million, Blue Cross/Blue Shield spent over $296 million, Northrop Grumman spent over $243 million, and Boeing Company spent over $242 million. Id.

81. BUS. ROUNDTABLE PROFILE, CTR. FOR RESPONSIVE POLITICS, https://www.opensecrets.org/orgs/sum-mary.php?id=D000032202 (last visited Feb. 24, 2017).


and the Senate in 2015.82 The Roundtable represented big business’s first major foray into

Washington politics, but corporations quickly grew comfortable with the lobbying indus-

try and began operating separate lobbying offices.83 Quantitative data highlights the ex-

plosion of lobbying in Washington, DC: “Between 1971 and 1982, the number of firms

with registered lobbyists in Washington grew from 175 to 2445.”84 While only eighty-

three corporations employed lobbyists in 1960, more than 3000 corporations retained lob-

byists in 1980.85

Some corporations have more than one hundred lobbyists on staff or contract, al-

lowing them to constantly influence public policy.86 Large corporations and third party

trade associations, like the Roundtable, spend thirty-four dollars for every dollar labor un-

ions and public-interest groups spend combined.87 Ninety-five of the hundred highest-

spending lobbying organizations consistently represent big businesses.88

Moreover, lobbying expenses are by far the largest form of corporate political activ-

ity in the United States, far outpacing federal campaign contributions by a margin of

twenty-to-one.89 For example, in 2010, corporations spent $350 million on federal political

campaigns, but spent $5.1 billion on federal lobbying.90 Likewise, between 2009 and 2010,

the U.S. Chamber of Commerce spent only $33 million on federal campaign contributions

compared to more than $302 million on federal lobbying.91

The old adage you must spend money to make money may echo soundly in the prac-

tice of corporate lobbying. A study on the effect of lobbying on subsequent financial per-

formance found a correlation between corporate profits and lobbying intensity.

[B]ased on a pooled regression including all firms (i.e., those with zero and those

with positive lobbying spending), we find evidence that lobbying expenditures are

on average positively correlated with financial performance. . . . Some of the more

interesting findings appear when we take a portfolio approach [and consider stock

market returns]. Here, we compare the returns of firms that lobby based on their

lobbying intensity, to the returns generated by portfolios of non-lobbying firms. We

find that portfolios of firms with the highest lobbying intensities outperform their

benchmarks of non-lobbying firms [by 5.5% per year, for the three years following

their intense lobbying]. . . . Firms with the highest lobbying intensity outperform

other firms.92

82. Drutman, supra note 73; R. ERIC PETERSEN & IDA A. BRUDNICK, CONG. RESEARCH SERV., R43557, LEGISLATIVE BRANCH: FY2015 APPROPRIATIONS 6–7 (2014).


84. DRUTMAN, supra note 38, at 58.


86. Drutman, supra note 73.

87. Id.

88. Id.

89. See Hui Chen et al., Corporate Lobbying and Financial Performance 4 (Nov. 23, 2012) (unpublished manuscript), available at https://mpra.ub.uni-muenchen.de/21114/1/MPRA_paper_21114.pdf.

90. Adam Bonica, Avenues of Influence: On the Political Expenditures of Corporations and Their Directors and Executives 8 (August 20, 2013) (unpublished manuscript), available at https://www.prince-ton.edu/csdp/events/Bonica11072013/SSRN-id2313232.pdf.

91. Id. at 9.

92. Chen et al., supra note 89, at 25. The study also found that $1 spent on lobbying was associated with an additional $24 to $44 in corporate income. Id. at 20. But see John C. Coates IV, Corporate Governance and Corporate Political Activity: What Effect Will Citizens United Have on Shareholder Wealth? 1 (Sept. 21, 2010) (unpublished manuscript), available at https://ssrn.com/abstract=1680861 (finding that “[p]olitical activity . . .


However, studies also support the argument that corporate lobbying has negative

effects on corporate governance and leads to suboptimal levels of investor protection.93

For example, describing the factors that contribute to “inefficiently low levels of investor

protection,” one study notes that “corporate insiders may be able to use some of the re-

sources of the publicly traded companies under their control in order to influence politi-

cians,” and “offer positions or business to politicians’ relatives or associates,” all while

“their firms (and in turn, other shareholders in their firms) bear some of the costs of such

lobbying.”94

Finally, studies show that the public may ultimately be paying for any benefits that

lobbying activities bestow on corporations since “part of the value from lobbying may

arise from potentially unethical arrangements with policy makers.”95 Described as “a new

weapon” in lobbyists’ arsenals, “quid-pro-quo corporate-based lobbying” is leverage that

lobbyists hold over elected officials in this form: “[I]f you vote wrong, my company . . .

will spend unlimited sums explicitly advertising against your re-election. . . . We have got

a million we can spend advertising for you or against you – whichever one you want.”96

Undoubtedly, concerns about the impact of undisclosed corporate lobbying on in-

vestor protection is one motivating factor in the push for greater transparency in corporate

lobbying information.97 Investors do not contend that corporate lobbying is inherently

bad.98 Not only is lobbying a First Amendment-protected activity, but it also facilitates

public involvement in government policy and provides useful empirical information to

policymakers.99 Instead, consistently with this Note, investors argue that corporate lobby-

ing activities pose material risks to corporate reputation and share value, and therefore,

companies must disclose lobbying information.100

III. INVESTOR ENGAGEMENT FOR DISCLOSURE: INTERESTS, MOTIVATIONS, AND

ILLUSTRATIONS

Given the rapid proliferation of corporate lobbying activity and the sheer amount of

aggregate spending, it is unsurprising that investors demand greater transparency in their

companies’ lobbying policies and practices. Unfortunately, companies have not been

forthcoming with such information.101 Even facing annual shareholder resolutions, law-

is strongly negatively correlated with firm value”).

93. See Lucian A. Bebchuk & Zvika Neeman, Investor Protection and Interest Group Politics, 23 REV. FIN. STUD. 1089, 1090, 1092 (2010).

94. Id. at 1091.

95. Alexander Borisov et al., The Corporate Value of (Corrupt) Lobbying, HARV. L. SCH. FORUM ON CORP. GOVERNANCE & FIN. REG. (Aug. 18, 2014), https://corpgov.law.harvard.edu/2014/08/18/the-corporate-value-of-corrupt-lobbying.

96. E-mail from John Keenan, Corp. Governance Analyst, AFSCME Capital Strategies, to author (Mar. 6, 2017, 6:08 PM CST) (on file with author); David D. Kirkpatrick, Lobbyists Get Potent Weapon in Campaign Ruling, N.Y. TIMES (Jan. 21, 2010), http://www.nytimes.com/2010/01/22/us/politics/22donate.html.

97. Robert Menendez, Corporate Executives Should Tell Investors Whether They Are Spending Company Resources for Political Purposes, PROXY PREVIEW 2014, at 8, http://www.asyousow.org/wp-content/up-loads/2014/03/ProxyPreview2014.pdf.

98. PROXY PREVIEW 2016, supra note 14, at 28 (“[R]ather than an end to corporate spending on politics,” shareholders instead seek “full disclosure with board oversight.”).

99. Mayer, supra note 15, at 486.


101. Id. The author notes that most companies oppose lobbying disclosure primarily to avoid making public


suits, and intense public scrutiny, companies remain steadfast in their refusal to adopt pol-

icies that would increase transparency and board oversight of lobbying activities.102 As a

result, investors have employed a variety of methods to push for increased disclosure, in-

cluding shareholder resolutions, lawsuits, and petitions for SEC regulation. Primarily, in-

vestors have used shareholder resolutions as a vehicle for greater transparency.103

A. Shareholder Resolutions

Rules promulgated by the SEC empower investors to submit shareholder resolutions,

which are ballot items that contain a recommended “course of action that [shareholders]

believe the company should follow.”104 At annual meetings, company shareholders cast

votes on ballot items (generally by proxy) in approval or disapproval of resolutions.105 The

SEC, investors, and corporate executives are mindful of shareholder resolutions because

they “serve as an important indicator of investor interest in particular matters.”106

1. Increasing Shareholder Resolutions and Their Demands

Since 2010, “disclosure of political spending has . . . been a more frequent subject

of shareholder proposals at U.S. public companies than any other corporate governance

issue.”107 For example, resolutions seeking corporate political information, including cor-

porate lobbying activities, dominated other subjects as the most popular in 2012 through

2014, peaking at one-third of all shareholder resolutions in 2013.108 Although the language

of lobbying disclosure resolutions may vary, they all seek nearly identical information.

The proposals “ask companies to disclose their lobbying, including federal and state lob-

bying, payments to trade associations and third parties used for indirect lobbying, and any

payments to tax exempt organizations that write and endorse model legislation.”109 One

resolution, filed nearly verbatim in at least 190 different corporations since 2012, also

seeks information about the company’s policies, requesting a “[d]escription of the decision

making process and oversight by management and the Board for making [direct or indirect

lobbying] payments.”110

2. The Success of Shareholder Resolutions

Shareholder resolutions are unique because even when they do not earn majority

their payments to trade associations, which “spend hundreds of millions of dollars annually to influence policy decisions.” Id.

102. Id.

103. Id.

104. 17 C.F.R. § 240.14a-8(a) (2015).

105. § 240.14a-8(a).

106. Lucian A. Bebchuk & Robert J. Jackson, Jr., Shining Light on Corporate Political Spending, 101 GEO.

L.J. 923, 938 (2013) [hereinafter Shining Light].


108. See AS YOU SOW, PROXY PREVIEW 2012, at 3 (2012), available at http://www.asyousow.org/publica-tions/2012/ProxyPreview2012.pdf; AS YOU SOW, PROXY PREVIEW 2013, at 5 (2013), available at http://www.asyousow.org/ays_report/proxy-preview-2013; AS YOU SOW, PROXY PREVIEW 2014, at 6-7 (2014), available at http://www.asyousow.org/wp-content/uploads/2014/03/ProxyPreview2014.pdf.


110. PROXY PREVIEW 2016, supra note 14, at 29.


support, resolutions still often meaningfully impact company policies.111 Therefore, the

traditional approach for gauging success—whether a measure obtained majority support—

is not appropriate for shareholder resolutions because it is possible to affect change with a

much lower threshold of support.112 The figures vary, but the general consensus is that

“management very likely pays close attention,” and seeks to negotiate with sponsoring

shareholders, “[w]hen twenty-five percent of company shares are voted in favor of a share-

holder-sponsored resolution.”113

Based on the consensus measure of success, shareholder resolutions seeking corpo-

rate lobbying disclosure have been extremely successful. In 2016, these shareholder reso-

lutions occupied ballots at ten companies.114 On average, 28.65% of shareholders sup-

ported the resolutions, and five resolutions received more than thirty percent support.115 In

fact, forty percent of Suncor Energy and 39.8% of Emerson Electric shareholders sup-

ported resolutions for increased disclosure.116 Since 2010, six resolutions have earned ma-

jority support, and thirty-five resolutions earned more than forty percent support.117 Un-

doubtedly, shareholder resolutions have successfully earned the attention of corporate

executives, as well as investors, the media, and the public.

Even if success is measured by the toughest metric—affecting change in a com-

pany’s policies—shareholder resolutions have been successful because many companies,

apparently recognizing that the information is material to investors, now disclose lobbying

information. In a process called negotiated withdrawal, corporate executives, in exchange

for shareholders withdrawing pending resolutions, agree to modify company policies to

comply with disclosure requests.118 Negotiated withdrawals have proved to be a successful

approach—since 2003, shareholders have reached negotiated withdrawal agreements to

increase political spending disclosures at sixty-one S&P 500 companies.119

To illustrate a negotiated withdrawal, consider this example. In 2013, an Accenture

111. See, e.g., John Keenan, Interpreting the Effectiveness of Shareholder Proposals 1 (July 2013) (un-published article) (on file with author) (noting that “proposals have effect when gaining significant levels of support, including twenty percent”); SUSTAINABLE INVS. INST., THE INVESTOR CAMPAIGN FOR CORPORATE

POLITICAL ACTIVITY DISCLOSURE 1 (2016), available at http://corporatereformcoalition.org/wp-content/up-loads/2016/06/Corporate-Political-Spending-Shareholder-Resolutions-2010-2016.pdf [hereinafter THE

INVESTOR CAMPAIGN] (noting that in response to investor pressure, including shareholder resolutions with sig-nificant support, “an increasing number of companies have put in place formal board oversight and reporting mechanisms.”).

112. See, e.g., Christopher P. Skroupa, Success and Shareholders—Why Companies Should Engage, FORBES (July 24, 2016, 7:09 AM), http://www.forbes.com/sites/christopherskroupa/2016/07/24/success-and-sharehold-ers-why-companies-should-engage/#8b992feb62a1 (noting that “successful shareholder votes are generally measured not in the typical electoral sense of receiving a majority, but by getting the votes necessary to re-file the resolution the following year.”).

113. Catherine Fredman, The Power of a Shareholder Proxy, CONSUMER REP. (Feb. 19, 2016), http://www.consumerreports.org/personal-investing/the-hidden-power-of-a-shareholder-proxy.

114. PROXY PREVIEW 2016, supra note 14, at 30; CERES, 2016 SHAREHOLDER RESOLUTIONS, https://www.ceres.org/investor-network/resolutions/#!/subject=Political%20Spending (last visited Feb. 24, 2017).

115. PROXY PREVIEW 2016, supra note 14, at 30; CERES, supra note 114 (Devon Energy Corporation: 31.1%; Emerson Electric: 39.8%; Pfizer Inc.: 30.7%; Pinnacle West Capital Corporation: 34.5%; Suncor Energy: 40%).

116. PROXY PREVIEW 2016, supra note 14, at 30; CERES, supra note 114.

117. THE INVESTOR CAMPAIGN, supra note 111, at 4.

118. See PROXY PREVIEW 2016, supra note 14, at 4.

119. CTR. FOR POLITICAL ACCOUNTABILITY, 2016 CPA-ZICKLIN INDEX OF CORPORATE POLITICAL

DISCLOSURE AND ACCOUNTABILITY 32 (2016), http://files.politicalaccountability.net/index/2016_Index.pdf [hereinafter 2016 CPA-ZICKLIN].


shareholder resolution seeking increased lobbying disclosure received 31.2% support at

the company’s annual meeting.120 Accenture shareholders renewed the resolution in 2014,

but withdrew the proposal after Accenture agreed to disclose its lobbying policies and

practices, “including identifying [its] major trade association memberships, dues paid, and

how much of these [dues] are used for lobbying.”121 Noting that 305 companies have

adopted voluntary disclosure policies since 2003, including 141 companies that did so

without shareholder engagement, the Center for Political Accountability declared, “Indis-

putably, a voluntary trend toward greater [transparency], board oversight and restrictions

on political spending continues.”122

3. The Shortcomings of Successful Shareholder Resolutions

Even successful shareholder resolutions, however, do not resolve many sharehold-

ers’ concerns. Shareholder resolutions are precatory, meaning even when a shareholder

resolution achieves majority support, it is not binding on the actions of the company or its

board.123 Therefore, even as investors push for increased support of their resolutions, a

majority-support result may not lead to the transparency they desire.

Additionally, even when shareholders negotiate a voluntary disclosure agreement,

the fact that the company self-regulates its compliance with the agreement concerns many

shareholders.124 Voluntary disclosure agreements are undoubtedly useful developments,

but “where else in the realm of corporate spending do we just leave it to corporations to

tell us whatever they want to?”125 Signaling their agreement, scholars and shareholders

alike question the effectiveness and accuracy of voluntarily-adopted disclosure policies,

arguing that “they are no substitute for . . . a clearly delineated, unambiguous, and uniform

set of disclosure requirements for all public companies.”126

This pessimistic view of corporate self-regulation is not without support: A 2014

study by the Citizens for Responsibility and Ethics in Washington (“CREW”) revealed

that more than forty percent of companies fail to comply with their voluntary disclosure

policies.127 Most disturbing, CREW opted to study these particular companies because

they ranked highest on the CPA-Zicklin Index of Corporate Political Disclosure, which

described them as “the vanguard of public companies voluntarily laying the foundation for

a new route to disclosure and accountability.”128 Of the sixty companies studied, twenty-

five failed to disclose more than $3.1 million in political spending.129

120. PROXY PREVIEW 2014, supra note 108, at 41.

121. Id.

122. 2016 CPA-ZICKLIN, supra note 119, at 9.

123. Doron Levit & Nadya Malenko, Nonbinding Voting for Shareholder Proposals, 66 J. FIN. 1579, 1579

(2011).

124. See CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Amended Petition for Rulemaking on Disclosure by Public Companies of Corporate Resources Used for Political Activities Ex. A, 1 (2014), https://www.sec.gov/rules/petitions/2014/petn4-637-2-amended.pdf [hereinafter CREW].

125. Eleanor Bloxham, What’s Behind All the Corporate Secrecy Over Political Spending?, FORTUNE (Jan. 9, 2013, 12:13 PM), http://fortune.com/2013/01/09/whats-behind-all-the-corporate-secrecy-over-political-spend-ing (quoting Robert J. Jackson, Jr., Director of the Columbia Law School program on Corporate Law and Policy).

126. CREW, supra note 124, at 16–17.

127. Id. at Ex. A, 1.

128. Id. at Ex. A, 5; 2016 CPA-ZICKLIN, supra note 119, at 9.

129. CREW, supra note 124, at Ex. A, 1.


CREW also revealed that in addition to omitting political expenditures, some com-

panies’ spending also contradicted their stated principles and policies.130 For example,

Ford Motor Company’s ‘Policy on Political Contributions’ reads, “Ford does not make

contributions to political candidates or political organizations as a matter of policy. . . .

Nor do we take positions for partisan political purposes.”131 CREW revealed, however,

that between 2011 and 2013, Ford Motor Company contributed more than $200,000 to

partisan political organizations.132

B. Investor Motivations for Engagement

As the sharp increase in shareholder engagement for lobbying disclosure demon-

strates, investors are increasingly interested in information regarding their companies’ lob-

bying activities. Shareholders regularly cite three key concerns caused by the lack of trans-

parency in corporate lobbying activities.

First, shareholders are concerned about the reputational, commercial, and legal risks

to shareholder value posed by corporate lobbying activities.133 Researchers have estimated

that the value of reputation contribution, which is “the proportion of a company’s market

[value] attributable to its reputation,” represents as much as fifty-eight percent of a com-

pany’s market capitalization.134 The CEOs of leading global companies also recognize this

fact; sixty percent of CEOs surveyed at the World Economic Forum stated that reputation

contribution represented more than forty percent of the market capitalization of their com-

pany.135 Eighty-seven percent of executives “rate reputation risk as more important or

much more important than other strategic risks their companies are facing.”136 Likewise,

investors believe that “[c]ompanies with a high reputational rank perform better finan-

cially” than lower ranked companies which, in turn, causes serious concern about the rep-

utational risks of corporate lobbying activities.137 The network neutrality example dis-

cussed in Section D provides one such example of these risks.

Secondly, shareholders raise corporate governance concerns, noting that executives

may not properly oversee lobbying activities to ensure that spending is in congruence with

the corporation’s self-defined values or in the best interests of shareholders.138 For exam-

ple, the Conference Board, a global non-profit that disseminates best business practice

information, issued a report stating: “Companies that adopt robust approval and oversight

130. Id. at Ex. A, 2.

131. FORD MOTOR CO., SUSTAINABILITY REPORT 2014–2015, at 198 (2015), http://corporate.ford.com/micro-sites/sustainability-report-2014-15/doc/sr14.pdf.

132. CREW, supra note 124, at Ex. A, 19.


134. Simon Cole, The Impact of Reputation on Market Value, 13 WORLD ECON. 47, 58, 61 (2012).

135. Alexander F. Brigham & Stefan Linssen, Your Brand Reputational Value is Irreplaceable. Protect It!, FORBES (Feb. 1, 2010, 5:15 PM), http://www.forbes.com/2010/02/01/brand-reputation-value-leadership-manag-ing-ethisphere.html.

136. DELOITTE, 2014 GLOBAL STUDY ON REPUTATION RISK 5 (2014), available at https://www2.deloitte.com/content/dam/Deloitte/global/Documents/Governance-Risk-Compli-ance/gx_grc_Reputation@Risk%20survey%20report_FINAL.pdf.


138. See, e.g., Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who Decides?, 124

HARV. L. REV. 83, 91 (2010) [hereinafter Who Decides?] (“Corporate political spending can be expected to affect corporate governance rules in general,” but unfortunately “[o]ne area in which . . . executives may be particularly likely to have views divergent from those of shareholders involves rules concerning corporate governance and shareholder rights.”).


policies . . . are better positioned to avoid the serious financial, legal, and reputational risks

associated with political spending while protecting shareholder value and promoting the

company’s best interests.”139 Nevertheless, NorthStar Asset Management, a socially re-

sponsible investment firm, “has yet to find one corporation that regularly compares its

values to an analysis of the . . . political groups it supports.”140

The underlying concern is that executives may use the corporate treasury to advance

their political ideologies or their personal political ambitions, even when the corporation

itself receives no benefit.141 After all, CEOs of corporations that engage in lobbying activ-

ities are five times more likely than CEOs of non-lobbying corporations to be appointed

or nominated to political office after retiring.142 Indeed, of the 298 CEOs who retired in

2000, 32 CEOs—more than eleven percent—had received political appointment or nomi-

nation by 2011.143

Shareholders argue that if corporations are not going to adopt oversight and approval

policies to ensure the propriety of lobbying activities, then shareholders themselves must

step in to minimize risk to shareholder value.144 The idea of shareholder oversight flows

from Citizens United v. Federal Election Commission, in which Justice Anthony Kennedy

declared that “[w]ith the advent of the Internet, prompt disclosure of expenditures can

provide shareholders . . . with the information needed to hold corporations . . . accounta-

ble,” enabling shareholders to “determine whether their corporation’s political speech ad-

vances the corporation’s interest in making profits.”145 If the spending failed to do so,

shareholders could correct executive misconduct through “the procedures of corporate de-

mocracy.”146 However, if companies refuse to disclose lobbying activities, a potential

source of executive misconduct, the procedures of corporate democracy fail, and share-

holder intervention becomes impossible.

Finally, opaque lobbying activities pose significant risks to investor protections.147

The decision to engage in lobbying activities is “governed by the same rules as ordinary

business decisions, which give directors and executives virtually plenary authority.”148 The

139. THE CONFERENCE BD., HANDBOOK ON CORPORATE POLITICAL ACTIVITY 4 (2010).

140. Julie N.W. Goodridge & Christine Jantz, Corporate Political Spending: Why Shareholders Must Weigh In, 5 J. VALUES-BASED LEADERSHIP 1, 4 (2012).

141. See, e.g., John C. Coates IV, Corporate Politics, Governance, and Value Before and After Citizens United, 9 J. EMPIRICAL LEGAL STUD. 1, 2 (2012) (finding that corporate political activity “correlates negatively with measures of shareholder power, . . . positively with signs of managerial agency costs (corporate jet use by CEOs), and negatively with shareholder value.”). For example, two weeks after Wisconsin Governor Scott Walker emailed Larry Nichols, chairman of Devon Energy, Devon Energy contributed $50,000 to the Wisconsin Club for Growth, a political action committee that supported Governor Walker during his 2012 gubernatorial recall election. Devon Energy, however, had no business interests in Wisconsin. See Steven Elbow, Donald Trump’s WI Club for Growth Donation Among Those Detailed in New Records, CAPITAL TIMES (Oct. 29, 2014), http://host.madison.com/ct/news/local/writers/steven_elbow/donald-trump-s-wi-club-for-growth-donation-among-those/article_d005b560-1ab3-524c-ae68-594380484455.html.

142. Coates, supra note 141, at 21. “The odds that a CEO obtained post-CEO political employment were significantly higher [fifteen percent] for CEOs of firms that engaged in lobbying prior the CEO leaving the com-pany,” compared to three percent for CEOs of firms that do not engage in lobbying activities. Id.

143. Id.

144. Goodridge & Jantz, supra note 140, at 5.

145. Citizens United v. FEC, 558 U.S. 310, 370 (2010).

146. Id.

147. See Menendez, supra note 97.

148. Who Decides?, supra note 138, at 83.


rules provide no process for direct, binding shareholder input.149 Therefore, some share-

holders are concerned that executives may use corporate resources to weaken sharehold-

ers’ rights or “to support . . . repealing corporate disclosure and shareholder voting protec-

tions.”150 A recent example from Oklahoma illustrates these concerns and shows why

shareholders cannot rely on politicians alone for protection.

C. Illustrations of Investors’ Concerns Realized

Shareholders have cause for concern, as examples of shareholder abuse by corporate

executives are not difficult to find. In the Chesapeake Energy Corporation example below,

the company’s executives, at the expense of Chesapeake shareholders, lobbied for legisla-

tion that prohibited unitary board governance systems, which a majority of shareholders

supported in two consecutive shareholder resolutions. In the network neutrality example

below, the companies’ executives raided corporate treasuries for tens of millions of dollars

to oppose a policy that most Americans, and most shareholders, supported.

1. Undermining Investor Protection: Chesapeake Energy Corporation

In 2010, Chesapeake Energy Corporation’s board of directors faced a number of

threats.151 Aside from rapidly declining share prices and intense public scrutiny, Chesa-

peake’s directors were particularly concerned about a takeover attempt by Carl Icahn, the

famed shareholder activist who had become Chesapeake’s second largest owner.152 Even

from within, Chesapeake’s board was under attack; its shareholders opposed Chesapeake’s

staggered-board system and instead sought a unitary board system, which provides share-

holders more influence over directors by requiring annual elections.153 In addition, “stag-

gered boards are associated with a reduced firm value” in an “economically meaningfully”

way.154 On recognizing the merits of unitary boards, shareholders of companies nation-

wide filed resolutions demanding their companies modify their board system. Interest-

ingly, most listened: in 2010, seventy percent of S&P 500 companies utilized unitary

boards, up from less than sixty percent in 2009.155

In both 2008 and 2009, Chesapeake shareholders filed resolutions requesting the

company eliminate its staggered-board structure and implement a unitary board; both pro-

posals received majority support.156 The proposing shareholder, in a statement supporting

the 2009 resolution, described Chesapeake’s CEO and directors as overpaid and, citing

their inaction on the 2008 resolution, unaccountable to shareholders.157 A majority of

149. Id. at 87 (“[S]hareholders are generally not able to enact binding resolutions” and “do not have the right to vote directly on, or enact bylaws addressing, the ordinary business decisions of the corporation.”).

150. Menendez, supra note 97.

151. Steven J. Cleveland, A Failure of Substance and a Failure of Process: The Circular Odyssey of Okla-homa’s Corporate Law Amendments in 2010, 2012, and 2013, 67 OKLA. L. REV. 221, 226–27 (2015).

152. Id. at 226–27, 229–30.

153. Id. at 228–29.

154. See Lucian A. Bebchuk & Alma Cohen, The Costs of Entrenched Boards, 78 J. FIN. ECON. 409, 430 (2005).

155. Carol Bowie, Institutional Shareholder Services 2016 Board Practices Study, HARV. L. SCH. FORUM ON

CORP. GOVERNANCE & FIN. REG., (June 1, 2016), https://corpgov.law.harvard.edu/2016/06/01/iss-2016-board-practices-study.

156. Cleveland, supra note 151, at 228–29.

157. Ryan DeArman, Shareholder, Chesapeake Energy Corp., Supporting Statement of Shareholder Proposal


shareholders apparently agreed, as the two proposals averaged sixty percent approval.158

Chesapeake’s board, it seemed, had no choice but to fold to shareholder pressure and adopt

a unitary board system.

Nevertheless, Chesapeake did not amend its charter, as the majority of shareholders

demanded; instead, it lobbied the Oklahoma Legislature to amend Oklahoma’s corporate

code.159 Speaking three years later, an Oklahoma legislator recalled, “Chesapeake . . . told

us we had to do this in order to protect Oklahoma corporations.”160 The Oklahoma Legis-

lature complied with Chesapeake’s requests and, on May 27, 2010, it amended Okla-

homa’s corporate code “without question, objection, or debate.”161 The 2010 amendment

required all large, publicly traded Oklahoma corporations to adopt a staggered-board struc-

ture, which effectively rendered it unlawful for Chesapeake to comply with its sharehold-

ers’ demands to adopt a unitary board.162

Three years and two more corporate code amendments later, legislators character-

ized the 2010 amendment as “a sweetheart deal.”163 One legislator flatly recalled that the

2010 amendment “was run especially for one corporation in Oklahoma.”164 Another cau-

tioned future legislators: “Just because a lobbyist comes in and tells you [an amendment

is] . . . for the shareholder, [that] doesn’t actually mean it’s for the shareholder.”165 Two

facts support this special-interest view of the 2010 amendment; both demonstrate why

shareholders cannot simply rely on politicians for protect.

First, the Oklahoma Legislature relied on Chesapeake’s outside counsel to draft the

2010 amendment, rather than the Oklahoma Bar Committee, which typically drafts Okla-

homa’s corporate code updates.166 Notably, if the Legislature had “turned to the . . . Bar

Committee to draft the 2010 amendment, the Committee would have rebuffed the request,

as a majority of the Committee opposed the staggered-board requirement.”167 Second, the

Oklahoma Legislature intimately involved Chesapeake, while failing to even notify other

large Oklahoma companies, including Oklahoma’s largest publicly traded corporation.168

This is particularly concerning considering that the 2010 amendment rendered the use of

unitary board systems in any Oklahoma corporation to be unlawful.169 Ironically, many

at the 2009 Annual Meeting of Stockholders (June 12, 2009), available at https://www.sec.gov/Archives/ed-gar/data/895126/000089512609000119/ex99_1.htm.

158. Id. Sixty-one percent of votes casted supported the 2008 resolution, and fifty-nine percent of outstanding shares supported the 2009 resolution. Id.

159. Cleveland, supra note 151, at 232.

160. Id. at 249 (quoting Rep. Cory Williams).

161. Id. at 234.

162. Id. at 232.

163. Id. at 249 (quoting Rep. Mike Reynolds).

164. Cleveland, supra note 151, at 249 (quoting Rep. Mike Reynolds).

165. Id. (quoting Rep. Cory Williams).

166. Id. at 250.

167. Id. at 250–51.

168. Joe Wertz, Declassified: Chesapeake Wants ‘Relief’ from an Oklahoma Law It Helped Write, NAT’L PUB. RADIO: STATEIMPACT OK., (June 8, 2012, 9:00 AM), https://stateimpact.npr.org/oklahoma/2012/06/08/declassi-fied-chesapeake-wants-relief-from-an-oklahoma-law-it-helped-write (noting that ONEOK, Inc. and OG&E En-ergy Corp. “didn’t know about the [2010 amendment] until a Wall Street Journal reporter reached out for com-ment.”).

169. Id. The Oklahoma Legislature later amended the corporate code again “to grandfather in companies such as ONEOK so that they could keep their declassified board structure.” Id.


companies affected by the 2010 amendment had previously utilized staggered-board sys-

tems but implemented a unitary board after shareholder resolutions demanding the change

earned majority support.170

This example demonstrates why shareholders are concerned about the risks undis-

closed lobbying activities pose to investor protections. In a 2013 amendment reversing the

staggered-board requirement, one Oklahoma legislator alluded to their concerns, asking,

“If we’re doing it for the shareholders [of Chesapeake] this time, does that mean I was

duped into doing it for the CEO [of Chesapeake] the first time?”171 Here, the Oklahoma

Legislature failed to protect Chesapeake’s shareholders from executives who wished, in

part, to limit shareholder power. Likewise, many shareholders are concerned their compa-

nies may, like Chesapeake, use shareholder resources to lobby politicians to enact legisla-

tion diminishing shareholders’ powers, even though most shareholders would oppose the

legislation.172 This example illuminates the problems inherent in relying on politicians for

protection: when faced with a potential takeover that may move jobs out of state, legisla-

tors will opt to protect the jobs, and therefore the corporation, even if it means sacrificing

shareholders’ powers.173

While Chesapeake’s shareholders, like most Oklahomans, were unaware of Chesa-

peake’s lobbying for the 2010 amendment, similar problems may arise when shareholders

are aware of a company’s actions to influence legislation. Indeed, when shareholders are

aware, the problem may be even more pronounced if companies lobby to advance the very

causes that their shareholders oppose.174 The fierce debate about network neutrality pro-

vides one such example.

2. Implicating Reputational Risks: Big Telecomm and Network Neutrality

Headlines criticizing corporate giants such as Verizon, Comcast, and AT&T for their

enormous anti-network neutrality lobbying expenditures were commonplace in the media

in 2014 and 2015. “They’re Putting Their Money Where Your Open Internet Is.”175 “Ver-

izon Killed Net Neutrality.”176 Network neutrality (“net neutrality”) is the idea that “indi-

viduals should be free to access all content and applications equally, regardless of the

source, without Internet service providers [(“ISPs”)] discriminating against specific online

services or websites.”177 The debate surrounding net neutrality, aimed mostly at the Fed-

eral Communications Commission (the “FCC”), polarized the U.S. with each side painting

170. Cleveland, supra note 151, at 260–61.

171. Id. at 285 (quoting Rep. Cory Williams).

172. See Menendez, supra note 97.

173. See, e.g., Cleveland, supra note 151, at 252–53, 258 (providing examples of state legislatures in Massa-chusetts, Oklahoma, and Washington enacting measures to protect in-state corporations from out-of-state acquir-ers).

174. See, e.g., Megan Tady, Shareholders Want to Vote on Comcast, AT&T’s Net Neutrality Stance, FREEPRESS (Oct. 12, 2013), http://www.savetheinternet.com/blog/10/12/13/shareholders-want-vote-comcast-att%E2%80%99s-net-neutrality-stance (noting that as more shareholders realize that net neutrality is “critical for competition, entrepreneurship, innovation and free expression,” shareholder protests will likely increase).

175. Lee Drutman & Zander Furnas, Who’s Putting the Most Money Against Net Neutrality?, DAILY DOT

(Dec. 11, 2015, 12:50 PM), http://www.dailydot.com/layer8/lobbyists-net-neutrality-fcc.

176. CREDO ACTION, Verizon Killed Net Neutrality. But The FCC Can Save It, http://act.credo-action.com/sign/verizon_netneutrality (last visited Feb. 25, 2017).

177. PUB. KNOWLEDGE, Net Neutrality, https://www.publicknowledge.org/issues/net-neutrality (last visited Feb. 25, 2017).


an ominous portrait of the future.

Proponents argued that without net neutrality, ISPs could control Internet access and

abuse it to increase their profits by, for example, “redirect[ing] users from one website to

a competing website” or “prevent[ing] users from visiting some websites” altogether.178

These concerns led proponents, such as Senator Al Franken, to call net neutrality “the most

important First Amendment issue of our time.”179 Opponents, on the other hand, insisted

that net neutrality was classic government overreach that granted the FCC “almost unfet-

tered discretion” over the Internet180—and displayed a “reckless disregard for . . . free mar-

ket principles.”181 The regulations, they argued, would constrain the market, hinder eco-

nomic growth, and cause “higher prices and less service for consumers.”182

While some major content providers like Apple and Google supported net neutrality

measures, the vast majority of net neutrality proponents were “average people.”183 Aver-

age people—these “Internet freedom activists”—formed grassroots organizations like

Save the Internet,184 gathered hundreds of thousands of signatures on petitions,185 and pick-

eted in front of the FCC’s headquarters and in dozens of cities across the country.186 Most

troublesome for shareholders, Internet freedom activists organized a number of boycotts

targeting the corporations that opposed net neutrality.187 Meanwhile, net neutrality oppo-

nents—mostly large corporate ISPs—focused on lobbying the FCC.188 Corporations out-

spent the grassroots proponents by a margin of five to one from 2003 to 2011 and three to

one from 2011 to 2013.189 In 2012 alone, Verizon, Comcast, AT&T, and one third-party

trade association spent more than $66 million opposing net neutrality measures.190

Verizon, Comcast, and AT&T shareholders took umbrage with the massive anti-net

178. Id.

179. Al Franken, Opinion, Net Neutrality is Foremost Free Speech Issue of Our Time, CNN (Aug. 5, 2010, 8:05 AM), http://www.cnn.com/2010/OPINION/08/05/franken.net.neutrality.

180. Ajit Pai & Joshua Wright, Opinion, The Internet Isn’t Broken. Obama Doesn’t Need to ‘Fix’ It., CHI. TRIB. (Feb. 18, 2015), http://www.chicagotribune.com/news/opinion/commentary/ct-internet-regulations-fcc-ftc-obama-broadband-perspec-0219-20150218-story.html.

181. Vern Buchanan, Opinion, Net Neutrality Fight: We Can’t Let FCC Internet Ruling Undermine Free Mar-ket, FOX NEWS (Mar. 9, 2015), http://www.foxnews.com/opinion/2015/03/09/net-neutrality-fight-cant-let-fcc-internet-ruling-undermine-free-market.html.

182. Pai & Wright, supra note 180.

183. Mike Snider et al., What Is Net Neutrality and What Does It Mean for Me?, USA TODAY (Feb. 27, 2015, 12:19 AM), http://www.usatoday.com/story/tech/2015/02/24/net-neutrality-what-is-it-guide/23237737.

184. See SAVE THE INTERNET, http://www.savetheinternet.com/sti-home (last visited Feb. 25, 2017).

185. See, e.g., Press Release, Save the Internet, More Than 1 Million People Call on FCC to Save Net Neu-trality (Jan. 30, 2014), available at http://www.savetheinternet.com/press-release/105672/more-1-million-peo-ple-call-fcc-save-net-neutrality (reporting that a coalition of organizations delivered more than one million sig-natures to the FCC in support of net neutrality). See also Edward Wyatt, White House Responds to Net Neutrality Petition, N.Y. TIMES (Feb. 18, 2014, 6:57 PM), http://bits.blogs.nytimes.com/2014/02/18/white-house-responds-to-net-neutrality-petition/?_r=0 (reporting that, in response to a petition with more than 100,000 signatures, Pres-ident Barack Obama reiterated that he “strongly supports” net neutrality measures).

186. Mary Alice Crim, Open Internet Activists Speak Out at May 15 Rallies Across the Country, FREE PRESS

(May 16, 2014), http://www.freepress.net/blog/2014/05/16/open-internet-activists-speak-out-may-15-rallies-across-country.

187. E.g., FIGHT FOR THE FUTURE, PLEDGE TO BOYCOTT CORPORATIONS UNDERMINING NETWORK

NEUTRALITY, https://cms.fightforthefuture.org/neutrality (last visited Feb. 25, 2017).

188. Drutman & Furnas, supra note 175.

189. Id. The authors compiled aggregate lobbying expenditures per corporation by searching LDA disclosure reports submitted by lobbyists. Of course the figures were not disclosed by the corporations and likely do not fully account for all lobbying expenditures. Id.

190. Id. at fig.3.


neutrality expenditures, particularly because many shareholders supported net neutrality

measures.191 Some shareholders took action because they did not approve of corporations

spending resources to oppose a measure that they, and the majority of the public, sup-

ported.192 Most dissenting shareholders, however, were not motivated by personal politics;

instead, they worried about the reputational and commercial risks posed by lobbying ac-

tivities, especially for corporations who professed to support the “Open Internet.”193 To

contest Verizon, Comcast, and AT&T’s lobbying activities, shareholders filed resolutions

at all three corporations, requesting information describing how executives planned to re-

spond to “regulatory, competitive, legislative and public pressure to ensure . . . network

management policies and practices support network neutrality.”194

Verizon shareholders were particularly active. In cooperation with Trillium Asset

Management, a socially responsible investment firm managing more than $2 billion in

assets, and the Nathan Cummings Foundation, a non-profit organization supporting polit-

ical accountability projects, a coalition of individual and institutional shareholders filed a

resolution requesting information on how Verizon planned to support network neutrality

and an Open Internet.195 These concerns stemmed from a troublesome incompatibility:

while Verizon’s self-defined values stated that it supported the Open Internet, Verizon’s

lobbying activities indicated otherwise.196 Indeed, writing to fellow Verizon shareholders

in support of the resolution, the proposing shareholders cited the “growing number of risks

brought about by the [sic] Verizon’s strategy of voicing support for network neutrality

principles [publicly] while actively seeking to undermine them [privately].”197 On May 1,

2014, 26.4% of shareholders, representing more than $30 billion in Verizon shares, voted

in favor of the resolution.198

Verizon, Comcast, and AT&T shareholders argued that the corporations may suffer

reputational and commercial losses as a result of their anti-net neutrality stances, especially

those which purported to support the Open Internet—and their concerns seem war-

ranted.199 Petitions to boycott the corporations due to their net neutrality opposition

trended across the Internet.200 In support of the FCC’s proposed net neutrality rules, the

191. Press Release, Trillium Asset Mgmt., Investors to Telecom Companies: Do the Right Thing and Let Shareholders Vote on Open, Free Internet Access For All (Dec. 13, 2010), available at http://www.trilliumin-vest.com/investors-to-telecom-companies-do-the-right-thing-and-let-shareholders-vote-on-open-free-internet-access-for-all.

192. E.g., Tady, supra note 174.

193. TRILLIUM ASSET MGMT. & NATHAN CUMMINGS FOUND., Verizon Shareholder Resolution on Wireless Network Neutrality, http://www.nathancummings.org/sites/default/files/v_reso_13.pdf [hereinafter Verizon Res-olution].

194. Id.

195. Id.

196. Verizon’s Commitment to Our Broadband Internet Access Customers, VERIZON WIRELESS,

https://www.verizon.com/about/sites/default/files/Verizon_Broadband_Commitment.pdf (last visited Aug. 6, 2017).

197. Press Release, Nathan Cummings Found., Verizon Shareholder Proposal on Open Internet Issues Re-ceives Support from Leading Proxy Advisory Firm ISS (Apr. 17, 2013), http://www.nathancum-mings.org/sites/default/files/vz_iss_recommendation_17april2013_final.pdf.

198. Open Internet Proposal at Verizon Wins $30.6 Billion of Shareholder Vote, OPEN MIC (May 8, 2014), available at http://www.openmic.org/issue-articles/2016/7/11/open-internet-proposal-at-verizon-wins-306-bil-lion-of-shareholder-vote.

199. Verizon Resolution, supra note 193.

200. E.g., FIGHT FOR THE FUTURE, supra note 187.


public filed more than 3.9 million comments—making it the most commented upon rule-

making in the FCC’s history201—with more than ninety-nine percent of comments in fa-

vor.202 More than one hundred organizations sent letters to the FCC expressing their sup-

port for the rules, from technology industry associations and small Internet businesses to

the Leadership Conference on Civil and Human Rights and the American Library Associ-

ation.203

The weight of public opinion clearly supported net neutrality measures and, because

of the media’s headlines identifying corporate opponents, the public knew which corpora-

tions opposed net neutrality.204 At the same time, corporations advised their shareholders

that their “ability to compete effectively depend[ed] on [their] perceived image and repu-

tation among . . . customers, consumers, advertisers, [and] investors.”205 For example,

CenturyLink, in its 2015 Form 10-K, noted: “Negative publicity may have an adverse im-

pact on our reputation . . . which could adversely affect our business, results of operations,

financial condition and cash flows.”206 Nevertheless, CenturyLink and other ISPs collec-

tively spent hundreds of millions of dollars opposing net neutrality measures.207

In light of this information, shareholders were concerned because the public heavily

scrutinized the corporations and some consumers even boycotted their products, implicat-

ing reputational and commercial risks that could adversely affect shareholder value. These

risks were even more pronounced for corporations like Verizon, which voiced public

voiced support for the “Open Internet” but still lobbied against net neutrality.208 Neverthe-

less, shareholders could not assess how their corporations would address these serious

policy concerns.209 Therein lies the crux of this Note: since corporate lobbying activities

implicate reputational and commercial risks, and because it is shareholders who are penal-

ized by such risks in the form of declining share value, lobbying activities create material

investor information that corporations must disclose under federal securities law.

D. Other Forms of Investor Engagement: Litigation, Legislation, and SEC Petitions

Perhaps recognizing the limitations of even successful shareholder resolutions, in-

vestors have not restricted their disclosure strategies to only shareholder resolutions. In-

stead, they have also turned to the SEC and the courts for rules and judgments mandating

disclosure of corporate lobbying information. While these measures enjoy limited success,

201. Gigi B. Sohn, FCC Releases Open Internet Reply Comments to the Public, FCC BLOG (Oct. 22, 2014, 4:07 PM), https://www.fcc.gov/news-events/blog/2014/10/22/fcc-releases-open-internet-reply-comments-pub-lic.

202. Elise Hu, 3.7 Million Comments Later, Here’s Where Net Neutrality Stands, NAT’L PUB. RADIO: ALL

TECH CONSIDERED (Sept. 17, 2014, 3:12 PM), http://www.npr.org/sections/alltechconsid-ered/2014/09/17/349243335/3-7-million-comments-later-heres-where-net-neutrality-stands.

203. Letter from Jonas Kron, Senior Soc. Res. Analyst, Trillium Asset Mgmt. to Meredith Cross, Dir., Div. of Corp. Fin., U.S. Sec. & Exch. Comm’n 3 (March 2, 2011), available at https://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2011/trilliumassetrecon030411-14a8.pdf.

204. E.g., supra text accompanying notes 174–76.

205. COMCAST CORP. & NBCUNIVERSAL MEDIA, ANNUAL REPORT (FORM 10-K), at 31 (Feb. 27, 2015), avail-able at http://www.cmcsa.com/secfiling.cfm?filingID=1193125-15-68526.

206. CENTURYLINK, INC., ANNUAL REPORT (FORM 10-K), at 22 (Feb. 24, 2015), available at https://www.sec.gov/Archives/edgar/data/18926/000001892616000047/ctl-2015123110k.htm.

207. Drutman & Furnas, supra note 175.

208. See Verizon Resolution, supra note 193.

209. Id.


they indicate the level of investor interest in corporate lobbying information.

In New York State Common Retirement Fund v. Qualcomm Incorporated, New York

State Comptroller Thomas DiNapoli sued Qualcomm after it refused to disclose its politi-

cal spending to shareholders.210 DiNapoli brought the complaint under Section 220 of the

Delaware General Corporation Law, which permits shareholders to inspect a company’s

books and records for “any proper purpose.”211 Regarded as a novel approach, DiNapoli

announced this was “the first time that a lawsuit has been brought under Section 220 with

regard to the use of political funds.”212 The legal theory had both supporters and critics,

but Harvey Pitt, Chairman of the SEC under President George W. Bush, notably called it

“‘a pretty compelling circumstance’ under the state law.”213 The courts, however, never

tested the legal theory as DiNapoli withdrew the lawsuit after Qualcomm agreed to fully

disclose its corporate political spending twice yearly, including direct and indirect lobby-

ing activities.214

Shareholders have also pressured the SEC to promulgate rules “to require public

companies to disclose to shareholders the use of corporate resources for political activi-

ties.” 215 In 2011, a bipartisan committee of leading corporate and securities law scholars

petitioned the SEC to initiate a rulemaking to require disclosure of corporate political

spending to public company shareholders.216 The petition drew unprecedented support,

receiving more than 1.2 million comment letters—more than any other issue in the history

of the SEC.217 Supporters included seventy U.S. Representatives, eighteen U.S. Senators,

one sitting SEC Commissioner, a number of former SEC Chairmen and Commissioners,

five state treasurers, and the Council of Institutional Investors, a non-profit association of

institutional investors managing more than $3 trillion in assets.218 In response to the out-

pouring of support, the Chairman of the SEC placed the rulemaking on the Commission’s

210. Verified Complaint for Inspection of Books and Records, at 4, N.Y. State Common Ret. Fund v. Qual-comm Inc., No. 8170-CS, (Del. Ch. Jan. 2, 2013), available at http://op.bna.com.s3.amazo-naws.com/srlr.nsf/r%3FOpen%3dywik-93mncd.

211. Id. at 1; DEL. CODE ANN. tit. 8, § 220 (West 2010).

212. Yin Wilczek, Fund Files Novel Suit in Delaware to Inspect Qualcomm Records on Political Expenditures, BLOOMBERG BNA (Jan. 7, 2013), http://www.law.harvard.edu/programs/corp_gov/MediaMentions/01-07-13_BNA.pdf.

213. Nicholas Confessore, State Comptroller Sues Qualcomm for Data About Its Political Contributions, N.Y. TIMES (Jan. 3, 2013), http://www.nytimes.com/2013/01/04/nyregion/new-york-comptroller-sues-qualcomm-for-data-on-political-giving.html.

214. Press Release, Office of the New York State Comptroller Thomas P. DiNapoli, Qualcomm Implements Industry-Leading Political Spending Disclosure Policy; DiNapoli Commends Action (Feb. 2, 2013), available at http://osc.state.ny.us/press/releases/feb13/022213.htm.

215. E.g., Letter from Comm. on Disclosure of Corp. Political Spending to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n 1 (Aug. 3, 2011), available at https://www.sec.gov/rules/petitions/2011/petn4-637.pdf.

216. Id. Although the 2011 Petition largely targeted corporate political contributions, the rule it proposed would encompass lobbying expenditures as well, particularly non-deductible trade association spending. See id. at 8, 10; E-mail from John Keenan, Corp. Governance Analyst, AFSCME Capital Strategies, to author (Mar. 6, 2017, 6:08 PM CST) (on file with author).

217. Lisa Gilbert, Political Spending Disclosure and the SEC, THE HILL (Mar. 28, 2016, 7:30 AM), http://thehill.com/blogs/pundits-blog/finance/274433-political-spending-disclosure-and-the-sec; Lucian Beb-chuk & Robert J. Jackson, The Million-Comment-Letter Petition: The Rulemaking Petition on Disclosure of Po-litical Spending Attracts More Than 1,000,000 SEC Comment Letters, HARV. L. SCH. FORUM ON CORP. GOVERNANCE & FIN. REG. (Sept. 4, 2014), https://corpgov.law.harvard.edu/2014/09/04/the-million-comment-letter-petition-the-rulemaking-petition-on-disclosure-of-political-spending-attracts-more-than-1000000-sec-comment-letters.

218. See Gilbert, supra note 217; PUBLIC CITIZEN, THE HISTORIC CAMPAIGN FOR CORPORATE POLITICAL

SPENDING DISCLOSURE 6 (2016), http://corporatereformcoalition.org/wp-content/uploads/2016/10/Corporate-


agenda in 2013, but then-SEC Chair Mary Jo White removed it from the Commission’s

agenda following considerable congressional pressure.219

Collaborating with CREW, a shareholder petitioned the SEC again in 2014. Asking

the Commission to reconsider the rulemaking, the shareholder noted that “the need for and

public interest in these regulations have increased exponentially” since the 2011 peti-

tion.220 Like the 2011 petition, the 2014 petition drew widespread public support, including

supportive comments from “forty-four U.S. senators, seventy investing endowed founda-

tions, the founder of the largest mutual fund in the country, [and] a bipartisan group of

former Chairs and members of the SEC.”221

The SEC, however, took no action regarding the 2014 petition, citing Section 707 of

the Consolidated Appropriations Act, in which the Republican-controlled Congress barred

the SEC from using its funds to “finalize, issue, or implement any rule, regulation, or order

regarding the disclosure of political contributions, contributions to tax exempt organiza-

tions, or dues paid to trade associations.”222 Ironically, major trade organizations, like the

U.S. Chamber of Commerce, lobbied Congress to attach this rider, which effectively for-

bade the SEC from working on a rule requiring that such organizations disclose their lob-

bying activities.223Addressing future appropriations acts, forty-one senators wrote a letter

to the Senate Majority Leader requesting he “reject any language that would limit the

[SEC’s] ability to develop, propose, issue, finalize, or implement a rule requiring public

companies to disclose political spending to shareholders.”224

Finally, shareholders have advocated for legislation addressing corporate political

spending, both campaign and lobbying expenditures, at the local, state, and federal levels.

Federal legislators have proposed legislation requiring corporate lobbying disclosure

nearly every year since 2009, but Republicans have prevented its passage by filibustering

and by keeping legislation in committee.225 Many state legislatures, however, have enacted

legislation to mandate disclosure and provide greater shareholder oversight of political

activities. For example, in Iowa, a company’s board of directors must now approve all

political spending, and in Maryland, all corporate political spending must now be disclosed

Political-Spending-Disclosure-report.pdf; Letter from Glenn Davis, Senior Research Assoc., Council of Institu-tional Inv’rs, to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n (Oct. 19, 2011), available at https://www.sec.gov/comments/4-637/4637-9.pdf.

219. Letter from Anne L. Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington, to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n 4 (May 8, 2014), available at https://www.sec.gov/rules/petitions/2014/petn4-637-2-amended.pdf [hereinafter 2014 Petition].

220. Id. at 1.

221. Gilbert, supra note 217.

222. Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 707, 129 Stat. 3029–30 (2016).

223. Dan Dudis, Chamber of Commerce Wages War Against Political Transparency, THE HILL (Oct. 20, 2016, 3:37 PM), http://thehill.com/blogs/pundits-blog/finance/302067-chamber-of-commerce-wages-war-against-po-litical-transparency.

224. Letter from forty-one senators to Mitch McConnell, Senate Majority Leader, (Sept. 15, 2016), available at https://www.menendez.senate.gov/news-and-events/press/41-senate-democrats-to-mcconnell-reject-efforts-to-block-corporate-political-spending-disclosure.

225. See Investors Rights and Corporate Accountability Act of 2009, S. 2813, 111th Cong. (2009); Shareholder Protection Act of 2010, H.R. 4537, 111th Cong. (2010); Shareholder Protection Act of 2011, S. 1360, 112th Cong. (2011); Shareholder Protection Act of 2013, S. 824, 113th Cong. (2013); Shareholder Protection Act of 2015, S. 214, 114th Cong. (2015). See also HARV. L. SCH. & PUBLIC CITIZEN, FULFILLING KENNEDY’S PROMISE: WHY THE SEC SHOULD MANDATE DISCLOSURE OF CORPORATE POLITICAL ACTIVITY 6–7 (2011), https://www.citizen.org/documents/Fulfilling-Kennedys-Promise.pdf.


to shareholders.226 In total, nineteen states and 737 municipalities have passed resolutions

or ballot initiatives calling for increased transparency in corporate political activities, as

well as requesting a constitutional amendment to overturn the Supreme Court’s 2010 de-

cision in Citizens United, which made possible unlimited corporate contributions to polit-

ical action committees.227

In conclusion, investors have employed a number of creative strategies and novel

legal theories to demand companies disclose their lobbying information. Shareholder res-

olutions earned substantial investor support, and SEC rulemaking petitions set records for

public comments. Yet, even when shareholders manage to change corporate policies to

mandate disclosure, shareholders’ three key concerns remain unresolved because compa-

nies self-regulate compliance with the disclosure agreements. Nevertheless, collective

widespread investor interest, as measured through various forms of investor engagement

with companies, courts, Congress, and the SEC, demonstrates that corporate lobbying ac-

tivities create material investor information that, under federal securities law, companies

must disclose.

IV. MATERIALITY APPLIED: THE CASE FOR REQUIRED DISCLOSURE

A. The Materiality Standard

Established by the Securities Act of 1933 and the Securities Exchange Act of 1934

(collectively, the “Securities Acts”), the U.S. securities regulation system is premised on

one simple, straightforward concept: “[A]ll investors, whether large institutions or private

individuals, should have access to certain basic facts about an investment prior to buying

it, and so long as they hold it.”228 Inspired by Justice Brandeis’s notion that transparency

is the antidote for an ailing market, drafters of U.S. securities laws believed that exposing

corporate conduct to public scrutiny would help protect investors.229 The drafters created

the SEC to enforce the new protections promulgated by the Securities Acts and “empow-

ered it to require disclosure of corporate [information] material to the public interest and

the protection of investors.”230

In response, the SEC wrote “hundreds of pages of confounding, cross-referenced

disclosure requirements in schedules and rules, backstopped by an additional requirement

226. Ciara Torres-Spelliscy, Four Years After Citizens United: The Good, the Bad, and the Ugly, BRENNAN

CTR. FOR JUSTICE (Jan. 17, 2014), https://www.brennancenter.org/blog/four-years-after-citizens-united-good-bad-and-ugly.

227. 2014 Petition, supra note 219, at 3; UNITED FOR THE PEOPLE, STATE AND LOCAL SUPPORT, http://united4thepeople.org/state-and-local-support-2/#Numbers (last visited Feb. 11, 2017).

228. What We Do, U.S. SEC. & EXCH. COMM’N, https://www.sec.gov/about/whatwedo.shtml (last visited Feb. 26, 2017).

229. See Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social Transparency, 112 HARV. L. REV. 1197, 1211–26 (1999), for a history of the intellectual and individual influences on the man-datory disclosure provisions of U.S. securities laws.

230. INITIATIVE FOR RESPONSIBLE INV., ON MATERIALITY AND SUSTAINABILITY: THE VALUE OF

DISCLOSURE IN THE CAPITAL MARKETS 6 (2012), http://iri.hks.harvard.edu/files/iri/files/on_material-ity_and_sustainability_-_the_value_of_disclosure_in_the_capital_markets.pdf (emphasis added).


of a disclosure of all ‘other material’ information.”231 However, the SEC never once de-

fined what the term “material” meant.232 Today, both courts and the SEC use an identical

test for determining whether information is material.233 Thus, examining both Supreme

Court jurisprudence and SEC guidance is instructive for applying the materiality standard.

1. The Federal Courts on Materiality

Left to define the SEC’s foundational term without SEC guidance, the Supreme

Court adopted a deceptively simple legal standard for determining what is “material.” The

simple but vague standard, developed in the following two cases, provides that information

is material if a substantial likelihood exists that a reasonable investor would consider the

information important in making an investment or voting decision.234 Although the “rea-

sonable investor” is a common figure in securities laws, “courts have not spoken with one

clear voice on its identity,” leaving him “anonymous, elusive, and the subject of much

inquiry.”235 For purposes of this Note, the reasonable investor is a “rational but non pro-

fessional participant in the capital markets,” who “grasps market fundamentals,” but is not

a “trained investment analyst.”236

The Court’s seminal case on materiality is TSC Industries, Incorporated v. North-

way, Incorporated.237 In TSC Industries, the Court held that information is material “if

there is a substantial likelihood that a reasonable shareholder would consider it important”

in making an investment or voting decision, and the information “would have assumed

actual significance in the deliberations of the reasonable shareholder.”238 Notably, the

standard does not require that the information cause a reasonable investor to change his or

her investment or voting decision, but instead simply that the information be important in

reaching the decision.239

More than a decade later, the Court addressed the materiality standard again in Basic

Incorporated v. Levinson.240 There, the lower court attempted to adapt the materiality

standard into an “easier to follow” bright-line rule.241 Rejecting the lower court’s test, the

Court wrote, “ease of application alone is not an excuse for ignoring the purposes of the

Securities Acts,” which “implement[] ‘a philosophy of full disclosure.’”242 Indeed, the

231. Dale A. Oesterle, The Overused and Under-Defined Notion of “Material” in Securities Law, 14 U. PA. J. BUS. L. 167, 168 (2011) (emphasis added).

232. Id.

233. Compare TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976) (holding that information “is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote”), with Selective Disclosure and Insider Trading, 17 C.F.R. pts. 243.100 to -.103 (2000) [hereinafter Selective Disclosure] (providing that information “is material if ‘there is a substantial likelihood that a reasonable shareholder would consider it important’ in making an investment decision”) (quoting TSC Indus., Inc., 426 U.S. at 449).

234. See TSC Indus., Inc., 426 U.S. at 449.

235. Amanda M. Rose, The “Reasonable Investor” of Federal Securities Law: Insights from Tort Law’s “Rea-sonable Person” and Suggested Reforms, 43 J. CORP L. (forthcoming 2017) (manuscript at 19) (on file with author).

236. Id. at 20.

237. TSC Indus., Inc., 426 U.S. at 438.

238. Id. at 449.

239. Id.

240. Basic Inc. v. Levinson, 485 U.S. 224 (1988).

241. Id. at 232–33, 236.

242. Id. at 230, 236 (quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963)).


Court noted, “any approach that designates a single fact or occurrence as always determi-

native of . . . materiality, must necessarily be overinclusive or underinclusive.”243 Further,

in rejecting the lower court’s rigid test, the Court reiterated that materiality is a flexible

standard, one which “requires the exercise of judgment in the light of all the circum-

stances” and is “to be determined on the basis of the particular facts of each case.”244

Although the facts and context differed in TSC Industries and Basic, the Court has

since applied the materiality standard articulated in those cases to nearly all areas of federal

securities law.245 In cases regarding disclosure, the Court has carefully avoided a low ma-

teriality threshold, which would “bury the shareholders in an avalanche of trivial infor-

mation.”246 Therefore, the requirement that a reasonable investor view the information as

significant ensures that only important information is disclosed to investors.247

2. SEC Guidance on Materiality

The SEC has adopted the Court’s materiality standard by reference in its guidance

materials and final rules.248 Further, to assist companies in “discharging ‘the onerous duty

of making materiality decisions,’” the SEC has also provided additional guidance in inter-

pretative rules.249 Three pieces of SEC guidance are particularly relevant for this Note’s

analysis of the materiality of corporate lobbying information.

First, the SEC has consistently reminded companies that because the materiality

standard is dependent upon whether information is important to a reasonable investor, it

evolves over time to address new issues and investor concerns.250 For example, in a 1998

guidance regarding the materiality of Year 2000-related information, the SEC stated that

the materiality standard is “dynamic and responsive to changing circumstances,” such that

information not previously material to investors may become so based on heightened pub-

lic interest.251 As the world grew concerned that technology problems would occur after

243. Id. at 236.

244. Id. at 236, 238.

245. Wendy Gerwick Couture, Materiality and a Theory of Legal Circularity, 17 U. PA. J. BUS. L. 453, 509–10 (2015) (noting that courts apply the materiality standard when considering cases involving common law fraud, mail and wire fraud, criminal securities fraud, and private securities litigation).

246. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 448 (1976).

247. Id. at 449.

248. See, e.g., Selective Disclosure, supra note 233, (providing that information “is material if ‘there is a sub-stantial likelihood that a reasonable shareholder would consider it important’ in making an investment decision”) (quoting TSC Indus., Inc., 426 U.S. at 449).

249. See SEC STAFF ACCOUNTING BULLETIN NO. 99—MATERIALITY, U.S. SEC. & EXCH. COMM’N, Release No. SAB 99 (Aug. 12, 1999), available at https://www.sec.gov/interps/account/sab99.htm (quoting FIN. ACCOUNTING STANDARDS BD., STATEMENT OF FINANCIAL ACCOUNTING CONCEPTS NO. 2, at 37 (1980) [here-inafter SAB 99].

250. See, e.g., U.S. SEC. & EXCH. COMM’N, STATEMENT OF THE COMMISSION REGARDING DISCLOSURE OF

THE YEAR 2000 ISSUES, Release No. 34-40277 (Aug. 4, 1998) (noting that information concerning a company’s “Year 2000 readiness” may be material, and therefore require disclosure to shareholders, due to widespread pub-lic and investor concern about technology problems) [hereinafter Year 2000 Disclosure]. See also DIV. OF CORP. FIN., U.S. SEC. & EXCH. COMM’N, CF DISCLOSURE GUIDANCE: TOPIC NO. 2—CYBERSECURITY (Oct. 13, 2011), available at https://www.sec.gov/divisions/corpfin/guidance/cfguidance-topic2.htm (noting that information re-garding cybersecurity risks and cyber incidents may be material, and thus require disclosure to shareholders, due to investor concern about the risks posed by cyber attacks).

251. Year 2000 Disclosure, supra note 250.


December 31, 1999, the SEC advised companies to reevaluate the materiality of infor-

mation about their technology systems.252 This example demonstrates that materiality is

largely derived from measures of public, governmental, and shareholder interest in infor-

mation.253 In other words, the reasonable investor’s interest in information is based largely

on the level of public attention to and interest in information about a topic.254

The SEC’s second relevant guidance is Staff Accounting Bulletin Number Ninety-

Nine (“SAB 99”). Staff Accounting Bulletins are SEC staff interpretations of the disclo-

sure requirements of federal securities laws.255 The SEC published SAB 99 as guidance

for auditors regarding misstatements, but it was nonetheless a “must read[] for all securi-

ties lawyers” because it was “applicable to all ‘materiality’ determinations.”256 The SEC

issued SAB 99, in part, because companies had developed erroneous quantitative “rules of

thumb” for materiality, believing that information was material only if it could result in a

financial impact on net income of at least five percent.257 SAB 99 dispelled this rule of

thumb, noting that reliance on a threshold percentage for determining materiality had “no

basis in the accounting literature or the law.”258

Instead, SAB 99 stated that companies “must consider both ‘quantitative’ and ‘qual-

itative’ factors in assessing [information’s] materiality.”259 Two factors identified by SAB

99 are especially germane to corporate lobbying information. First, SAB 99 “identifie[d]

possible market reaction as a factor to be considered in assessing materiality.”260 “Market

reaction” is the change in share price resulting from, among other things, investor and

consumer confidence.261 Second, and most importantly, SAB 99 provided that even “[i]f

management does not expect a significant market reaction, [information] still may be ma-

terial.”262 Therefore, even if information does not impact share price, the reasonable in-

vestor still may consider it significant in making investment and voting decisions.263

Lastly, the SEC’s “Guidance Regarding Disclosure Related to Climate Change”

(“Climate Change Guidance”) is relevant. To the surprise of many, the SEC weighed in

on the topic of climate change because it had “become a topic of intense public discussion

in recent years,” in which investors and “the public at large ha[d] expressed heightened

interest.”264 Therefore, the SEC promulgated Climate Change Guidance, which provided

252. Id.

253. Id. See also INT’L CORP. ACCOUNTABILITY ROUNDTABLE, KNOWING AND SHOWING: USING U.S. SECURITIES LAW TO COMPEL HUMAN RIGHTS DISCLOSURE 16 (2013), available at http://icar.ngo/wp-con-tent/uploads/2013/10/ICAR-Knowing-and-Showing-Report4.pdf [hereinafter HUMAN RIGHTS DISCLOSURE].

254. HUMAN RIGHTS DISCLOSURE, supra note 253, at 16.

255. Selected Staff Accounting Bulletins, U.S. SEC. & EXCH. COMM’N, https://www.sec.gov/interps/ac-count.shtml (last visited Feb. 21, 2017).

256. CORP. DEP’T, LATHAM & WATKINS, SAB 99: The SEC Defines “Materiality”, CLIENT ALERT, (Dec. 29, 1999), at 1.

257. SAB 99, supra note 249.

258. Id.

259. Id.

260. Id.; LATHAM & WATKINS, supra note 256, at 2.

261. Haidan Li, Morton Pincus & Sonja Olhoft Rego, Market Reaction to Events Surrounding the Sarbanes-Oxley Act of 2002 and Earnings Management, 51 U. CHI. J.L. & ECON. 111, 122 (2008) (classifying negative stock returns following the announcement of accounting fraud at WorldCom as a “market reaction” caused by declining investor and consumer confidence).

262. SAB 99, supra note 249, at n.17.

263. Id.

264. U.S. SEC. & EXCH. COMM’N, COMMISSION GUIDANCE REGARDING DISCLOSURE RELATED TO CLIMATE


a three-part framework for analyzing the materiality of information in response to increas-

ing public interest.

The SEC’s outline for determining materiality in light of popular relevancy focuses

on three factors.265 The first factor examines materiality by analyzing federal regulatory

efforts, state and local laws, and international community actions.266 The second factor

analyzes the potential direct and indirect impacts on long-term corporate value, such as

commercial and reputational risks.267 The third factor considers whether shareholders are

demanding disclosure, whether institutional investors or other groups are petitioning the

SEC for guidance regarding materiality, and whether businesses have acknowledged its

materiality by voluntarily disclosing the information.268

While the SEC’s 2010 guidance addressed only climate change-related information,

its framework is nevertheless instructive for addressing other emerging issues of public

interest and concern. For example, the International Corporate Accountability Roundtable

utilized the three-factor framework to propose to the SEC that human rights policies and

practices were material information because, like climate change, human rights had be-

come a topic of widespread public discussion.269 Likewise, corporate lobbying activities

are a topic of widespread public discussion, and therefore, the framework is instructive for

assessing the materiality of corporate lobbying information.

3. Conclusion

In summary, both the Supreme Court and the SEC acknowledge that materiality

judgments can be difficult, but nevertheless, both have rejected bright-line tests and ex-

haustive lists of material information or events.270 Instead, the Court and the SEC concur

that information is material whenever, in the light of the surrounding circumstances, there

is a significant likelihood that a reasonable investor would consider the information im-

portant when making an investment or voting decision.271 Moreover, SEC guidance pro-

vides that materiality is partially a product of investors, businesses, and the public “treating

a particular area or impact of business activity with heightened interest.”272

B. Demonstrating Materiality: Applying the Materiality Standard

1. Reasonable Investors are Interested in Corporate Lobbying Information

As shown in Part II, investors are demanding disclosure of corporate lobbying in-

formation at unprecedented levels. The level of investor engagement assumes particular

importance in determining materiality because materiality is, in part, a product of the

CHANGE 1, Release Nos. 33-9106, 34-61469, FR-82 (Jan. 27, 2010), available at https://www.sec.gov/rules/in-terp/2010/33-9106.pdf [hereinafter Climate Change Guidance].

265. Id. at 3, 5, 7.

266. Id. at 3–4.

267. Id. at 5–6, 26.

268. Id. at 7–8.

269. See HUMAN RIGHTS DISCLOSURE, supra note 253, at 16. See also Letter from Amol Mehra, Dir., Int’l Corp. Accountability Roundtable to Mary Jo White, Chair, U.S. Sec. & Exch. Comm’n 2–4 (July 19, 2016), available at https://www.sec.gov/comments/s7-06-16/s70616-161.pdf.

270. See Basic Inc. v. Levinson, 485 U.S. 224, 236 (1988); Selective Disclosure, supra note 233.

271. See TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976); Selective Disclosure, supra note 233.

272. HUMAN RIGHTS DISCLOSURE, supra note 253, at 16.


heightened interest.273 Therefore, because the materiality standard is “dynamic and respon-

sive to changing circumstances,” information not previously material to the reasonable

investor may become so based on increased attention from investors and the public.274

Such is the case for corporate lobbying information.

Undoubtedly, many investors are interested in corporate lobbying information. In-

vestors have filed more than 300 resolutions since 2010275—making “disclosure of politi-

cal spending . . . a more frequent subject of shareholder proposals at U.S. public compa-

nies than any other corporate governance issue.”276 Resolutions seeking disclosure of

corporate political spending information dominated other topics as the most popular from

2012 to 2014, peaking at one-third of all shareholder resolutions in 2013.277 The slight

decline in resolutions in recent years is due to the fact that many companies, recognizing

the materiality of lobbying information, have agreed to disclose such information.278 For

example, of the 209 S&P 500 companies at which shareholders have filed resolutions seek-

ing disclosure, sixty-one have agreed to disclose lobbying information.279

To illustrate the significant level of investor interest in corporate lobbying infor-

mation, consider the degree of investor engagement—which ultimately led to SEC rules

requiring disclosure—in two other instances. First, in June 1992, the SEC responded to

increasing investor engagement by proposing amendments to its corporate executive com-

pensation rules.280 Such amendments would require disclosure of senior executive pay and

compensation awards.281 In the preamble to its proposed rules, the SEC noted substantial

investor interest in the information and cited the “shareholder proposals on executive com-

pensation at nine well-known public companies,” which received an average of 11.2% of

shareholder support.282 The SEC received 20,000 comments supporting the proposal.283

Compare this to investor engagement regarding corporate lobbying information. In

2016 alone, investors filed more than fifty resolutions requesting companies disclose lob-

bying information.284 On average, 28.65% of shareholders supported the resolutions, and

273. Id.

274. Year 2000 Disclosure, supra note 250.

275. THE INVESTOR CAMPAIGN, supra note 111, at 2.


277. See PROXY PREVIEW 2012, supra note 108, at 3; PROXY PREVIEW 2013, supra note 108, at 5; PROXY

PREVIEW 2014, supra note 108, at 6.

278. See, e.g., Shining Light, supra note 106, at 939 (noting that shareholder resolution figures “actually un-derestimate investor interest in information on political spending” because “many public companies have already voluntarily agreed to provide some disclosure of political spending to shareholders.”).

279. 2016 CPA-ZICKLIN, supra note 119, at 32.

280. Patrick J. Straka, Executive Compensation Disclosure: The SEC’s Attempt to Facilitate Market Forces, 72 NEB. L. REV. 803, 804, 807–08 (1993). The author attributed the new disclosure rules to investor activism, writing, “Without the increase in shareholder activism, primarily through institutional investors, the impetus for change in the disclosure rules might not have occurred.” Id. at 808.

281. Id. at 804–05.

282. Shining Light, supra note 106, at 929, 963.

283. U.S. SEC. & EXCH. COMM’N, EXECUTIVE COMPENSATION AND RELATED PERSON DISCLOSURE 9, Release Nos. 33-8732A, 34-54302A, IC-27444A (issued Aug. 29, 2006), available at https://www.sec.gov/rules/fi-nal/2006/33-8732a.pdf [hereinafter EXECUTIVE COMPENSATION DISCLOSURE].



five resolutions received more than thirty percent support.285 The total number of share-

holder resolutions demanding lobbying disclosure is six times the number of proposals

demanding executive compensation information. Resolutions demanding lobbying disclo-

sure earned more than twice as much shareholder support as resolutions demanding exec-

utive compensation information. And while the SEC received “over 20,000 comment let-

ters in response to . . . [the executive compensation] proposal,” the SEC received more

than one million comment letters supporting the 2011 petition for lobbying disclosure.286

Next consider the SEC’s Climate Change Guidance, referenced above, in which it

advised companies to reevaluate the materiality of climate change-related information in

light of the “increasing calls for climate-related disclosures by shareholders” that occurred

between 2007 and 2009.287 Significantly, during this same period, more shareholders de-

manded disclosure of corporate lobbying information than climate-related information.288

As shown in Part II, investors have not confined their engagement strictly to share-

holder resolutions, but have instead sought increased disclosure in lawsuits, legislation,

and in rulemaking petitions to the SEC. The SEC rulemaking petition of 2011, as a meas-

ure of investor interest, is notable because it produced a record-breaking number of public

comments, including from politicians, institutional investors, non-profit organizations, and

investors who believe that disclosure is “a critically needed risk management tool for

shareholders, corporate management, and directors.”289

Collectively, these examples demonstrate that investors are demanding corporate

lobbying information more frequently and with greater support than other areas in which

the SEC has recognized investor interest as an impetus for its actions. Therefore, because

materiality is a product of investor and public interest in information, the unparalleled

degree of investor engagement regarding corporate lobbying information signifies that the

reasonable investor is interested in corporate lobbying information. While heightened in-

vestor interest is a major aspect of analyzing materiality, the reasonable investor must also

consider the information significant when deliberating on investment or voting decisions.

2. Reasonable Investors Consider Lobbying Information Significant in Their

Deliberations.

A reasonable investor considers corporate lobbying information significant when

deliberating on investment or voting decisions because lobbying activities pose risks to

285. PROXY PREVIEW 2016, supra note 14, at 30; CERES, supra note 114.

286. EXECUTIVE COMPENSATION DISCLOSURE, supra note 283, at 9; Lucian Bebchuk & Robert J. Jackson, The Million-Comment-Letter Petition: The Rulemaking Petition on Disclosure of Political Spending Attracts More Than 1,000,000 SEC Comment Letters, HARV. L. SCH. FORUM ON CORP. GOVERNANCE & FIN. REG. (Sept. 4, 2014), https://corpgov.law.harvard.edu/2014/09/04/the-million-comment-letter-petition-the-rulemaking-peti-tion-on-disclosure-of-political-spending-attracts-more-than-1000000-sec-comment-letters.

287. Climate Change Guidance, supra note 264, at 7.

288. See AS YOU SOW, PROXY PREVIEW 2010, at 5 (2010), available at http://www.asyousow.org/ays_re-port/proxy-preview-2010 (noting that “for the fourth year in a row, political [disclosure] continues to be the largest single social issue generating proposals.”).

289. See Letter from a Coalition of Investment Professionals to Elizabeth M. Murphy, Sec’y, U.S. Sec. & Exch. Comm’n 1 (Nov. 1, 2011), available at https://www.sec.gov/comments/4-637/4637-11.pdf; PUBLIC

CITIZEN, THE HISTORIC CAMPAIGN FOR CORPORATE POLITICAL SPENDING DISCLOSURE 6 (2016), available at http://corporatereformcoalition.org/wp-content/uploads/2016/10/Corporate-Political-Spending-Disclosure-re-port.pdf; Letter from Glenn Davis, Senior Research Assoc., Council of Institutional Inv’rs, to Elizabeth M. Mur-phy, Sec’y, U.S. Sec. & Exch. Comm’n (Oct. 19, 2011), available at https://www.sec.gov/comments/4-637/4637-9.pdf.


share value.290 Indeed, a series of surveys revealed that directors, shareholders, and busi-

ness leaders alike recognize the risks posed by undisclosed political activity. A survey of

255 members of boards of directors revealed “a substantial percentage [believe] political

activity poses risks to their company.”291 Similarly, eighty-five percent of shareholders

and sixty-six percent of business leaders believe that undisclosed political activity “puts

corporations at legal risk and endangers corporate reputations.”292 Therefore, for a number

of reasons, it is likely that a reasonable investor would consider information about a com-

pany’s lobbying practices and policies significant when making an investment or voting

decision.

For instance, corporate reputation is invaluable—and undisclosed lobbying activi-

ties endanger it. Research indicates that “the proportion of a company’s market cap[itali-

zation] attributable to its reputation” represents as much as fifty-eight percent of a com-

pany’s total market capitalization.293 Even CEOs of leading global companies agree;

specifically, sixty percent of CEOs surveyed at the World Economic Forum answered that

corporate reputation constituted more than forty percent of their company’s market capi-

talization.294 A reasonable investor would be aware of this because companies routinely

acknowledge as much in their Form 10-K filings, reminding shareholders that their “ability

to compete effectively depends on [their] perceived image and reputation among . . . cus-

tomers.”295

Both controversial and uncontroversial lobbying activities endanger companies’ rep-

utation among customers, which can have direct and prolonged impacts on shareholder

value. Most obviously, controversial lobbying activities may lead to consumer boycotts.

While boycotts are not a recent invention, modern social media proliferates boycotts and

allows them to reach more consumers—and thereby cause more severe consequences—

than ever.296 A study of twenty-one boycotted companies found “statistically significant

decreases in stock prices for the target firms,” which led to each of the twenty-one com-

panies suffering “an average [loss] of more than $120 million [in market capitalization]

over the two-month post-announcement period.”297 Another study found that boycotts

cause a 2.7% decline in share price in the ten days following announcement, with an even-

tual loss of 3.4% one hundred days later.298 For companies “that are sensitive to their image


291. MASON-DIXON POLLING & RESEARCH, NATIONWIDE SURVEY OF MEMBERS OF CORPORATE BOARDS OF

DIRECTORS 3 (2008), available at http://files.politicalaccountability.net/reports/cpa-reports/Survey_of_Direc-tors.pdf.

292. MASON-DIXON POLLING & RESEARCH, CORPORATE POLITICAL SPENDING: A SURVEY OF AMERICAN

SHAREHOLDERS 6 (2006), available at https://zicklin.baruch.cuny.edu/centers/zcci/downloads/cpa-mason-dixon-survey-poll-and-analysis-03.pdf/at_download/file; ZOGBY INT’L, COMMITTEE FOR ECONOMIC

DEVELOPMENT: OCTOBER BUSINESS LEADER STUDY 16 (2010), available at https://www.ced.org/pdf/Zogby-Poll2010.pdf.

293. Cole, supra note 134, at 61.

294. Brigham & Linssen, supra note 135.

295. COMCAST CORP. & NBCUNIVERSAL MEDIA, ANNUAL REPORT (FORM 10-K), at 31 (2014), available at http://www.cmcsa.com/secfiling.cfm?filingID=1193125-15-68526.

296. The Trump Effect, supra note 5 (noting that “[t]hanks to Reddit, Twitter, [and] Facebook, . . . a single spark of dissent or misinformation can quickly become an inferno.”).

297. Stephen W. Pruitt & Monroe Friedman, Determining the Effectiveness of Consumer Boycotts: A Stock Price Analysis of Their Impact on Corporate Targets, 9 J. CONSUMER POL’Y 375, 382 (1986). The authors con-cluded that consumer boycotts have “a highly significant negative effect on the stock prices of the target firms” and deal “substantial damage to the wealth positions of stockholders of target firms.” Id.

298. Richard E. White & Dilip D. Kare, The Impact of Consumer Boycotts on the Stock Prices of Target Firms,


and directly serve customers,” this can be particularly devastating.299

Moreover, politically motivated boycotts are on the rise. One CEO recently fore-

casted that changing consumer culture would bring more “pocketbook protests” than ever

before, calling corporate boycotts “the new political battleground.”300 Indeed, anti-Trump

boycotts during and following the 2016 election cycle support this forecast.301 One public

boycott, the #GrabYourWallet campaign, trended on social media, targeted more than fifty

companies, and garnered in excess of 700 million views.302 Like aligning with a contro-

versial candidate, lobbying for controversial legislation can pose serious public boycott

risks. For example, GoDaddy, a publicly traded web-hosting service, became the target of

a boycott after a U.S. House Judiciary Committee report revealed that it had privately

expressed support for the controversial Stop Online Piracy Act.303 GoDaddy initially ig-

nored the boycott, but after it lost more than 37,000 domain customers in only two days,

it reversed its stance, announcing it opposed the measure.304

A lesser known, but perhaps more threatening risk posed by undisclosed lobbying

activities, “conscious consumerism,” describes a growing subset of consumers who attach

ethical consequences to their purchasing decisions.305 Unlike boycotts, which are generally

limited in length, conscious consumerism describes the habitual propensity of certain cus-

tomers to purchase products from companies that have positive social impacts.306 It may

sound foreign and unthreatening, but the Millennial generation is ushering in this new era

of socially-conscious consumerism.307 For example, sixty-eight percent of Millennials

considered a company’s social and environmental commitment “important or extremely

important” to their purchasing decision.308 Additionally, forty-five percent of Millennials

stated they would refuse to purchase a company’s products if they learned the company’s

products or policies carried negative social impacts.309 Simply put, there is an increasing

number of consumers that consider the ethical consequences of their purchases. Even with-

out a public boycott, the modern consumer may consciously choose to avoid a company’s

products or services due to negatively perceived lobbying activities by the company. As a

result, companies that engage in undisclosed lobbying activities create serious risks for

their investors.

6 J. APPLIED BUS. RES. 63, 67 (2006).

299. The Trump Effect, supra note 5.

300. Id.

301. E.g., #GRABYOURWALLET, WHAT WE’RE ABOUT, https://grabyourwal-let.org/What%20We’re%20About.html (last visited Feb. 27, 2017). A “brand strategist and a grandmother” launched a consumer boycott “both as a response to Donald Trump’s infamous hot mic[rophone] remark and a reference to women’s epic consumer power.” Id.

302. Id.

303. Cheredar, supra note 6.

304. Id.

305. NETWORK FOR BUS. SUSTAINABILITY, SOCIALLY CONSCIOUS CONSUMERISM PRIMER 1 (2009), available at http://nbs.net/wp-content/uploads/NBS-Consumerism-Primer.pdf.

306. NIELSEN CO., Global Consumers are Willing to Put Their Money Where Their Heart Is When It Comes to Goods and Services From Companies Committed to Social Responsibility (June 17, 2014), http://www.niel-sen.com/us/en/press-room/2014/global-consumers-are-willing-to-put-their-money-where-their-heart-is.html.

307. CONE INC., THE 2006 CONE MILLENNIAL CAUSE STUDY 9 (2006), available at http://www.centerforgiv-ing.org/Portals/0/2006%20Cone%20Millennial%20Cause%20Study.pdf.

308. Id.

309. Id.


The SEC recognized this risk, albeit in different terms, in its Climate Change Guid-

ance. It noted that public perception of a company’s environmental impact “could expose

it to potential adverse consequences to . . . its financial condition resulting from reputa-

tional damage.”310 As Millennials, the majority of whom are conscious consumers, become

the dominant consumer group, companies whose practices and policies have negative so-

cial impacts will be punished by decreased product demand, not to mention difficulty re-

taining and recruiting a talented workforce.311 Therefore, a reasonable investor would con-

sider corporate lobbying information significant in deliberations about an investment or

voting decision because such information illuminates long-term risks to corporate reputa-

tion and, in turn, shareholder value.

The risks that undisclosed lobbying activities pose to companies do not end with the

indirect risks to corporate reputation. Corporate lobbying activities can also implicate se-

rious direct risks, including litigation, financial penalties, and direct impacts on share-

holder value. New York State Common Retirement Fund v. Qualcomm Incorporated

demonstrated that undisclosed lobbying activities—even if uncontroversial—pose legal

risks, especially considering that DiNapoli, the New York State Comptroller, cited Qual-

comm’s “deficient” CPA-Zicklin Index score in the complaint.312 After six weeks of ne-

gotiations, the parties reached an agreement for full disclosure of political spending.313 The

costly litigation and lengthy negotiations, however, could have been avoided entirely if

Qualcomm’s political spending policies were more transparent.

In addition, corporate lobbying activities also pose regulatory risks. For example, in

2015, Lockheed Martin agreed to pay a $4.7 million fine to settle charges that it engaged

in illegal lobbying activities to secure the extension of a $2.4 billion per year contract with

the U.S. Department of Energy.314 While this penalty alone may seem minimal, the direct

risks of corporate lobbying cannot be considered in a vacuum because the discovery of

such violations also implicates indirect risks. For example, the contract Lockheed Martin

illegally lobbied to extend had, since 1993, been a no-bid contract, meaning the govern-

ment never solicited competing bids from other companies.315 However, following the

$4.7 million settlement, the U.S. Department of Energy announced that, for the first time

in twenty-four years, it would solicit competitive bids for the contract.316

Undisclosed lobbying activities can also directly benefit management at the expense

of shareholder value and investor protections. Consider, for example, the Chesapeake En-

310. Climate Change Guidance, supra note 264, at 26.

311. See, e.g., CONE INC., supra note 307, at 9 (finding that fifty-six percent of Millennials are likely to refuse to work at a company that is not socially or environmentally responsible).

312. Verified Complaint for Inspection of Books and Records, N.Y. State Common Ret. Fund v. Qualcomm Inc. 18, ¶ 51, No. 8170-CS, (Del. Ch. Jan. 2, 2013), available at http://op.bna.com.s3.amazo-naws.com/srlr.nsf/r%3FOpen%3dywik-93mncd.

313. Alison Frankel, NY Pension Fund’s Bold Tactic to Force Campaign Spending Disclosure, REUTERS (Jan. 3, 2013), http://blogs.reuters.com/alison-frankel/2013/01/03/ny-pension-funds-bold-tactic-to-force-campaign-spending-disclosure.

314. Lisa Rein, Lockheed Martin Pays $4.7 Million to Settle Charges It Lobbied for Federal Contract with Federal Money, WASH. POST (Aug. 24, 2015), https://www.washingtonpost.com/news/federal-eye/wp/2015/08/24/after-allegations-that-it-lobbied-with-federal-money-to-block-competition-lockheed-mar-tin-agrees-to-pay-almost-5-million/?utm_term=.15ed949b5f98.

315. Id.

316. Id.


ergy Corporation. As noted in Part II, Chesapeake’s executives—at the expense of share-

holders—lobbied for legislation that prohibited governance by a unitary board system,

which the majority of shareholders desired.317 The alternative was governance by a stag-

gered-board system that benefitted management by shielding directors from a proxy con-

test with Carl Icahn.318 Chesapeake’s sponsored legislation, as noted above, negatively

affected investor rights because the staggered-board system “unduly insulated the board

members and rendered them insensitive to shareholder concerns.”319

In addition to negatively affecting investor rights, the legislation lobbied for by the

Chesapeake executives directly harmed shareholder value in two ways. First, the legisla-

tion damaged future earnings potential because “staggered boards are associated with a

reduced firm value” in an “economically meaningfully” way.320 Second, the legislation

may have directly thwarted a takeover attempt by Carl Icahn, from which shareholders

could potentially have realized substantial capital gains from their shares.321 Indeed,

“there’s no more rapid source of share price gains than when a company becomes a take-

over target,” but the legislation mandating a staggered-board system rendered such a take-

over much less likely.322 A reasonable investor would certainly be aware of, and consider,

this missed opportunity when deliberating on future voting and investment decisions, and

would surely consider such information significant.

V. CONCLUSION

Modern consumers are reforming their private acts of consumption into overt polit-

ical declarations and transforming goods and services into vehicles for protesting corporate

political activities. On recognizing this growing consumer trend, shareholders are demand-

ing increased transparency in corporate lobbying because it poses serious reputational,

commercial, and legal risks to shareholder value. The materiality of corporate lobbying

information is reflected in the unprecedented demand and support for such information, as

well as in the substantial number of corporations that now disclose lobbying information

to their shareholders.

While modern consumers seemingly have little in common with their eighteenth

century ancestors, one thing is certain: like the colonists who refused to purchase British

goods at the price of political dependence, Millennial consumers refuse to associate with

companies whose political practices are opaque and whose policies have negative social

impacts. Unlike American patriots, who could gather boycott support only by passing pe-

titions door-to-door, modern consumers need only send a tweet or draft a Facebook post

to share their narrative of resistance with hundreds of millions of people. Unfortunately

317. Daniel Gilbert, Oklahoma Board Rule Benefits Chesapeake, WALL ST. J. (July 11, 2011), https://www.wsj.com/articles/SB10001424052702303763404576418091195332896.

318. See Cleveland, supra note 151, at 229-31.

319. Id. at 228.

320. See Bebchuk & Cohen, supra note 154, at 430.

321. See Cleveland, supra note 151, at 223 (noting that Oklahoma legislators “candidly admitted to enacting [the] legislation in 2010 to protect [CEO] Aubrey McClendon” and Chesapeake Energy Corporation “from famed corporate raider Carl Icahn.”).

322. Crista Huff, What to Do When Your Stock is a Takeover Target, CABOT WEALTH (Feb. 2, 2016), https://cabotwealth.com/daily/how-to-invest/what-to-do-when-your-stock-is-a-takeover-target.


for the modern shareholder, this translates into fewer competitive advantages in the mar-

ketplace, including decreased consumer demand and difficulty attracting and retaining em-

ployees and investors. Ultimately, consumer dissonance will have negative impacts on

revenues, profits, and share prices.

The Supreme Court repeatedly has “described the ‘fundamental purpose’ of the [Se-

curities Acts] as implementing a ‘philosophy of full disclosure,’” aimed at protecting in-

vestors by providing them all significant information.323 Corporate lobbying disclosure

furthers the purpose of the Securities Acts by protecting investors. Indeed, such infor-

mation is necessary for investors to make fully informed voting and investment decisions.

Political expression—once relegated to bumper stickers and yard signs—has returned to

the marketplace, motivated by opaque corporate lobbying activities. Federal securities law,

in congruence with its “philosophy of full disclosure,” mandates that corporations must

disclose lobbying information to investors because it is material.

323. Basic Inc., 485 U.S. 224, 230 (1988) (quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963)).

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